Kirkland v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER that plaintiff's application for attorney's fees is GRANTED in part and DENIED in part and that the plaintiff is awarded from the Commissioner $1,726.09 in attorney's fees. Signed by Magistrate Judge Katherine P. Nelson on 4/19/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
YVONNE KIRKLAND,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 15-00046-N

MEMORANDUM OPINION AND ORDER
On March 18, 2016, Plaintiff Yvonne Kirkland (hereinafter, “the Plaintiff”) filed
and served an Application for Attorney Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”) (Doc. 24), requesting an award of $1,918.60 in attorney’s fees
from the Defendant Commissioner of Social Security.

On April 7, 2016, the

Commissioner filed and served a response stating that she does not oppose the motion or
the amount requested.

Upon consideration, the Court finds the Plaintiff’s EAJA fee

application (Doc. 24) is due to be GRANTED in part and DENIED in part.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 finds that

By the consent of the parties (see Doc. 19), 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. 20).

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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).”
F.2d 373, 375 (11th Cir. 1989).

United States v. J.H.T., Inc., 872

“[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.”

Newsome, 8 F.3d at 777 (citing Myers, 916 F.2d at 672–

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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 February
17, 2016.

(See Docs. 22, 23).

Because a United States officer sued in an official

capacity is a party to this action, the time to appeal that judgment expired after sixty
(60) days from February 17, 2016 (i.e. after April 18, 2016).
4(a)(1)(B), 26(a)(1)(C).
2016.

See Fed. R. App. P.

Thus, the judgment became no longer appealable after April 18,

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

Because the Plaintiff filed her EAJA fee

application on March 18, 2016, 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.”

Newsome, 8 F.3d at 777.

See also Myers, 916 F.2d at 666

(“Since the EAJA's enactment, the vast majority of EAJA awards have gone to claimants

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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 and indeed does not oppose an award of EAJA fees to the Plaintiff.
32).

(See Doc.

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.
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

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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. May 9, 2007) (per
curiam) (unpublished).
The Plaintiff requests an award of fees “based upon an hourly rate of $189.96 per
hour for 10.10 hours of work on this case in federal court.”

(Doc. 24 at 1; Doc. 24-32).

After reviewing the timesheet of Plaintiff’s counsel (Doc. 24-2), the Court will not award
fees for an hour purportedly spent on “review of Order to amend pauperis petition; letter
to client” and “preparation of amended pauperis petition; e-filing of same.”

No such

order was entered in this action, nor was an “amended pauperis petition” filed.

The

Court finds the remaining number of billed hours (9.10) to be reasonable and finds the
requested rate to be an appropriate market rate for similar services provided by lawyers
of reasonably comparable skills, experience, and reputation.3

Moreover, the upward

adjustment is justified under the formula from this Court’s decision in Lucy v. Astrue,

Plaintiff’s counsel has included what he styles an “affidavit of counsel” (Doc. 24-1) verifying
that the timesheet (Doc. 24-3) he has submitted is a “true accounting.” As it is not been
notarized, the document is not an affidavit, nor is it in substantial compliance with 28
U.S.C. § 1746 so that it may be considered an unsworn declaration. However, given that (1)
Plaintiff’s counsel has represented under Federal Rule of Civil Procedure 11 that the
timesheet is accurate and (2) the Commissioner does not dispute the hours or amount
counsel claims, the Court will accept that document as accurate.

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“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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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:
($125/hour) x (CPI–U[4] 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 January 30, 2015, and the Court’s
Remand Order and Judgment were entered on February 17, 2016.

The number of days

between those two dates is 382; thus the “temporal midpoint” between those two dates
falls in August 2015.

The relevant CPI–U for August 2015 was 231.26.

Plugging the

relevant numbers into the foregoing formula renders the following equation: $125 x
231.26 / 152.4.

This calculation yields an hourly rate, adjusted for “cost of living”

increases, of $189.68, which the Court finds to be an appropriate hourly rate under
EAJA to take into account increases in cost of living.
Thus, the Court will award attorney’s fees under EAJA in the amount of
$1,726.09 (i.e. $189.68 x 9.1).
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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II.

Conclusion

In accordance with the foregoing analysis, it is ORDERED and ADJUDGED
that the Plaintiff’s Application for Attorney Fees under EAJA (Doc. 24) is GRANTED in
part and DENIED in part and that the Plaintiff is awarded from the Defendant
Commissioner $1,726.09 in attorney’s fees.5
DONE and ORDERED this the 19th day of April 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Unless a party requests one, no separate judgment regarding attorney’s fees shall be
forthcoming. See Fed. R. Civ. P. 58(a)(3) (judgment need not be set out in a separate
document for an order disposing of a motion for attorney’s fees).

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