Wilson v. Colvin et al

Filing 26

ORDER granting 23 Motion for Attorney Fees (EAJA) in the amount of $4,301.25. Signed by Magistrate Judge Katherine P. Nelson on 8/31/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
SHARON WILSON, o.b.o. T.M.W.,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 14-00400-N

ORDER
This action is before the Court on the Plaintiff’s Application for Attorney Fees
under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. 23), to which
the Defendant Commissioner has timely filed a response (Doc. 25) indicating no
opposition to the award sought.

The Plaintiff requests an award of $4,301.25 in

attorney’s fees. Upon consideration, the Court finds that the motion is due to be
GRANTED.1
I.

Analysis

“The EAJA provides that the district court ‘shall award to the prevailing party
other than the United States fees and other expenses ... incurred by that party in
any civil action (other than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States ..., unless the court

By the consent of the parties (see Doc. 18), the Court has designated the undersigned
United States Magistrate Judge to conduct all proceedings and order the entry of judgment
in this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (See
Doc. 19).

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finds that the position of the United States was substantially justified or that special
circumstances make an award unjust.’ ”

Newsome v. Shalala, 8 F.3d 775, 777 (11th

Cir. 1993) (quoting 28 U.S.C. § 2412(d)(1)(A)-(B)) (footnotes omitted).

“[T]hree

statutory conditions must be satisfied before a district court can award EAJA
attorney's fees. First, the claimant must file an application for fees within thirty
days of final judgment in the action… Second, assuming the fee application was
timely filed, the claimant must qualify as a prevailing party… Finally, if the
claimant is a prevailing party who timely filed an EAJA fee application, then the
claimant is entitled to receive attorney's fees unless the government can establish
that its positions were substantially justified or that there exist special
circumstances which countenance against the awarding of fees.”

Myers v. Sullivan,

916 F.2d 659, 666 (11th Cir. 1990) (citation and quotation marks omitted).
A.

Timeliness

“The Equal Access to Justice Act (‘EAJA”’) provides that a ‘party seeking an
award of fees and other expenses shall, within thirty days of final judgment in the
action, submit to the court an application for fees and other expenses....” 28 U.S.C. §
2412(d)(1)(B) (1982). It is settled that a ‘final judgment’ means that the judgment
is final and not appealable. 28 U.S.C. § 2412(d)(2)(G).” United States v. J.H.T., Inc.,
872 F.2d 373, 375 (11th Cir. 1989).

“[T]his timely filing requirement is

jurisdictional in nature; that is, a claimant's failure to file an EAJA application
within thirty days of a final judgment no longer appealable precludes the district
court from considering the merits of the fee application.”
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Newsome, 8 F.3d at 777

(citing Myers, 916 F.2d at 672–73).
Where, as here, “the district court enters a ‘sentence four’ remand order[
under 42 U.S.C. § 405(g)], that judgment is appealable.”

Id. at 778. “[W]hen a

remand was pursuant to sentence four, the 30–day filing period for applications for
EAJA fees ‘begins after the final judgment (‘affirming, modifying, or reversing’) is
entered by the [district] court and the appeal period has run, so that the judgment is
no longer appealable.’ ”

Id. (quoting Melkonyan v. Sullivan, 501 U.S. 89, 102

(1991)).
The Court entered its “sentence four” remand order and judgment on May 13,
2015. (See Docs. 21, 22). Because a United States agency was a party to this
action, the time to appeal that judgment expired after sixty (60) days from May 13,
2015.

See Fed. R. App. P. 4(a)(1)(B).

appealable after July 13, 2015.

Thus, the judgment became no longer

See Fed. R. App. P. 26(a)(1)(C).

Because the

Plaintiff filed her EAJA fee application on August 4, 2015, the application is timely,
and the Court has jurisdiction to consider its merits.
B.

Prevailing Party

In this action, the Plaintiff won a remand of a final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g), thus making her a
“prevailing party” entitled to EAJA fees. See Shalala v. Schaefer, 509 U.S. 292,
301-02 (1993). “Courts have routinely awarded EAJA attorney's fees to claimants
in Social Security cases who satisfy the statutory conditions.”
777.

Newsome, 8 F.3d at

See also Myers, 916 F.2d at 666 (“Since the EAJA's enactment, the vast
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majority of EAJA awards have gone to claimants who succeeded in challenging
contrary benefits decisions made by the Secretary of Health and Human Services.”).
C.

“Substantially Justified”/Special Circumstances

“The government's position is substantially justified under the EAJA when it
is justified to a degree that would satisfy a reasonable person—i.e. when it has a
reasonable basis in both law and fact. The government bears the burden of showing
that its position was substantially justified.”

United States v. Jones, 125 F.3d 1418,

1425 (11th Cir. 1997) (citations and quotations omitted).
The Commissioner has not attempted to show that her position was
substantially justified, instead stating that she “does not oppose” the Plaintiff’s
EAJA application and “agrees to pay Plaintiff $4,301.25 in attorney’s fees under the
EAJA.”

(Doc. 25 at 1).

Given the Commissioner’s position, and there being

apparent from the record no special circumstances which countenance against the
awarding of fees, the Court finds that the Plaintiff is entitled to an award of fees
under EAJA.
However,
[t]he EAJA further provides:
The amount of fees awarded ... shall be based upon prevailing
market rates, for the kind and quality of services furnished
except that ...
(ii) attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of living
or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.
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28 U.S.C. § 2412(d)(2)(A)(ii) (emphasis added).
In Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992), [this
Circuit] recognized a two-step process for determining the appropriate
hourly rate to be applied in calculating attorney's fees under the Act.
First, the district court must “determine the market rate for ‘similar
services [provided] by lawyers of reasonably comparable skills,
experience, and reputation.’ ” Id. (citation omitted). “The second step,
which is needed only if the market rate is greater than [$125] per hour,
is to determine whether the court should adjust the hourly fee upward
from [$125] to take into account an increase in the cost of living, or a
special factor.” Id. at 1033-34.
Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. 2007) (per
curiam) (unpublished).
The Plaintiff requests an award of fees “based upon an hourly rate of $185.00
per hour” for 23.25 hours of work on this case. (Doc. 23 at 1; Doc. 23-2).

The

Court finds the number of hours to be reasonable and finds this rate to be an
appropriate market rate for similar services provided by lawyers of reasonably
comparable skills, experience, and reputation.2

Moreover, the upward adjustment

is justified under the formula from this Court’s decision in Lucy v. Astrue, which is
often used to determine prevailing market rates for EAJA applications.
The prevailing market rate for social security cases in the Southern
District of Alabama has been adjusted to take into account an increase
in the cost of living. Lucy v. Astrue, CV 06–147–C, 2007 U.S. Dist.
LEXIS 97094 (S.D. Ala. July 5, 2007). In Lucy, the following formula,
based on the CPI, was utilized:

“The court…is itself an expert on the question and may consider its own knowledge and
experience concerning reasonable and proper fees and may form an independent judgment
either with or without the aid of witnesses as to value.” Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quotation omitted).

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($125/hour) x (CPI–U[ 3 ] Annual Average “All Items Index,”
South Urban, for month and year of temporal midpoint)/152.4,
where 152.4 equals the CPI–U of March 1996, the month and
year in which the $125 cap was enacted.
Id. at *12. The “temporal midpoint” is calculated by counting the
number of days from the date that the claim was filed to the date of the
Magistrate or District Judge's Order and Judgment. Id. at *5–6.
Winters v. Astrue, Civil Action No. 11-00261-CB-B, 2012 WL 1565953, at *2 (S.D.
Ala. Apr. 9, 2012), report and recommendation adopted, 2012 WL 1556652 (S.D. Ala.
Apr. 30, 2012).
The Complaint in this action was filed on August 28, 2014, and the Court’s
Order and Judgment were entered on May 13, 2015. The number of days between
those two dates is 257; thus the “temporal midpoint” between those two dates falls in
January 2015. The relevant CPI–U for January 2015 was 226.855. Plugging the
relevant numbers into the foregoing formula renders the following equation: $125 x
226.855 / 152.4. This calculation yields an hourly rate, adjusted for “cost of living”
increases, of $186.07, which the Court finds to be an appropriate hourly rate under
EAJA to take into account increases in cost of living.
Thus, the Court finds that the Plaintiff is due to be awarded $4,301.25, the
full amount she requests in fees under EAJA.
II.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the Plaintiff’s
Application for Attorney Fees under EAJA (Doc. 23) is GRANTED and that the
Consumer Price Index for All Urban Consumers, as determined by the Bureau of Labor
Statistics of the United States Department of Labor (http://www.bls.gov/cpi/tables.htm).

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Plaintiff is awarded from the Defendant Commissioner $4,301.25 in attorney’s fees.
DONE and ORDERED this the 31st day of August 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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