Burton v. Colvin

Filing 32

MEMORANDUM OPINION AND ORDER granting in part and denying in part #29 Motion for Attorney Fees (EAJA); plaintiff is awarded $2,710.46 in fees and other expenses. Signed by Magistrate Judge Katherine P. Nelson on 9/26/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MARY DENISE BURTON,
Plaintiff,

)
)
)
)
)
)
)
)

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

CIVIL ACTION NO. 16-00210-N

MEMORANDUM OPINION AND ORDER
Plaintiff MARY DENISE BURTON (hereinafter, “the Plaintiff”) has filed and
served a motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. §
2412 (“EAJA”), and Federal Rule of Civil Procedure 54(d)(2) (Docs. 29, 30), requesting an
award of $5,463.01 in attorney’s fees and other expenses from the Defendant
Commissioner of Social Security.

The Commissioner has filed no response to the

motion despite being given the opportunity, the deadline to do so has passed, and the
motion is now under submission.

See (Doc. 31); S.D. Ala. CivLR 7(c).

Upon

consideration, the Court finds the Plaintiff’s motion for attorney’s fees under EAJA
(Docs. 29, 30) 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

With the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment in this civil action, in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala.
GenLR 73. (See Docs. 17, 18).

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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
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).

“Thus, eligibility

for a fee award in any civil action requires: (1) that the claimant be a ‘prevailing party’;
(2) that the Government's position was not ‘substantially justified’; (3) that no ‘special
circumstances make an award unjust’; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B),
that any fee application be submitted to the court within 30 days of final judgment in
the action and be supported by an itemized statement.”

Comm'r, I.N.S. v. Jean, 496

U.S. 154, 158 (1990).
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

Where, as here, “the district court enters a ‘sentence

four’ remand order[ under 42 U.S.C. § 405(g)], that judgment is appealable.”
8 F.3d at 778.

Newsome,

“[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)).
Because a United States officer sued in an official capacity is a party to this
action, the time to appeal that judgment expired after 60 days from May 10, 2017, the
date the Court entered its “sentence four” remand order and judgment (Docs. 27, 28).
See Fed. R. App. P. 4(a)(1)(B).

Because the 60th day after that date fell on July 9, 2017,

a Sunday, the judgment became no longer appealable after Monday, July 10, 2017.
Fed. R. App. P. 26(a)(1)(C).

See

Because the Plaintiff filed his motion within 30 days of that

date, on August 7, 2017, the motion is timely.2
b.

Prevailing Party

With certain inapplicable exceptions, an individual qualifies as a “party” under
EAJA if the individual’s “net worth did not exceed $2,000,000 at the time the civil action
was filed.”

28 U.S.C. § 2412(d)(2)(B).

The Plaintiff has submitted a 28 U.S.C. § 1746

Past Eleventh Circuit precedent treated the timely filing requirement for an EAJA
motion as jurisdictional in nature. See, e.g., Newsome, 8 F.3d at 777. This precedent,
however, appears to have been abrogated by the Supreme Court’s decision in
Scarborough v. Principi, 541 U.S. 401, 413-14 (2004) (Ҥ 2412(d)(1)(B) does not describe
what classes of cases the C[ourt of Appeals for Veterans Claims] is competent to
adjudicate; instead, the section relates only to postjudgment proceedings auxiliary to
cases already within that court's adjudicatory authority. Accordingly,…the provision's
30–day deadline for fee applications and its application-content specifications are not
properly typed ‘jurisdictional.’ ” (citation and some quotation marks omitted)). Cf.
Townsend v. Comm'r of Soc. Sec., 415 F.3d 578, 581–82 (6th Cir. 2005) (“[O]ur past
precedent characterized the EAJA's time limitation for fee applications as
jurisdictional…This precedent, however is overruled by the Supreme Court's recent
decision in Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674
(2004), where the Supreme Court held that the EAJA's ‘30–day deadline for fee
applications and its application-content specifications are not properly typed
“jurisdictional.” ’ Id. at 1865.”). Because the Plaintiff’s EAJA motion was timely filed,
however, the Court need not decide the issue.

2

declaration averring that “[a]t the time that this action was begun, [her] net worth was
less than $2,000,000.00” (Doc. 30-5 at 2), and the Commissioner does not dispute this
assertion.

Accordingly, the Plaintiff qualifies as a “party” for purposes of the EAJA.

See 28 U.S.C. § 2412(d)(2)(B).
Because the Plaintiff received a remand of a final decision of the Commissioner
under sentence four of 42 U.S.C. § 405(g), she is thus a “prevailing” party under EAJA.
See Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Newsome, 8 F.3d at 777 (“Courts
have routinely awarded EAJA attorney’s fees to claimants in Social Security cases who
satisfy the statutory conditions.”); Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990)
(“Since the EAJA’s enactment, the vast 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 Position or Special Circumstances

An EAJA applicant is only required to allege that the Government’s position was
“not substantially justified.”

Scarborough v. Principi, 541 U.S. 401, 414-15 (2004).

“The burden of establishing that the position of the United States was substantially
justified…must be shouldered by the Government.”

Id. at 414.

“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.”

United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (citations and

quotations omitted).
The Plaintiff has alleged “the Commissioner was not substantially justified.”

(Doc. 30-6 at 2).

The Commissioner has not attempted to rebut that allegation, and

there are no special circumstances apparent from the record which countenance against
the awarding of fees.

Thus, the Court finds that the Plaintiff is entitled to an award of

fees under EAJA.
d.

Amount of Fees

The 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
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 a total EAJA award of $5,463.01, which is based upon 24.2
hours of federal court work performed by Plaintiff’s counsel at a rate of $191.86 per
hour, and 8.2 hours of federal court work performed by Plaintiff’s counsel’s paralegals at

a rate of $100.00 per hour.3

(Doc. 24 at 1 (footnote omitted)).

After reviewing the

itemized timesheets of Plaintiff’s counsel and his paralegals (Docs. 30-2, 30-3, 30-4), the
Court finds the number of hours billed by both counsel and paralegals to be reasonable.
The Court further finds that counsel’s requested attorney rate of $191.85 is an
appropriate market rate for similar services provided by lawyers of reasonably
comparable skills, experience, and reputation.4

Though counsel’s rate exceeds $125,

this upward adjustment is justified under the formula from this Court’s decision in Lucy
v. Astrue, which is often used to account for increases in the cost of living 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[5] 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
“[A] prevailing party that satisfies EAJA’s other requirements may recover its
paralegal fees from the Government at prevailing market rates.” Richlin Sec. Serv. Co.
v. Chertoff, 553 U.S. 571, 590 (2008).

3

“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).

4

Consumer Price Index for All Urban Consumers, as determined by the Bureau of Labor
Statistics of the United States Department of Labor (https://www.bls.gov/cpi/tables.htm
(last visited Sept. 14, 2017)).

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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 May 12, 2016, and the Court’s
sentence-four remand order and judgment were entered on May 10, 2017.

The number

of days between those two dates (i.e. excluding the start and end dates) is 362, and the
“temporal midpoint” between those two dates falls in November 2016.
CPI–U for November 2016 was 234.029.

The relevant

Plugging the relevant numbers into the

foregoing formula renders the following equation: ($125 x 234.029) / 152.4.

This

calculation yields an hourly rate adjusted for “cost of living” increases of $191.95.

The

Plaintiff’s counsel has billed at a slightly lower rate of $191.86, and the Court finds this
to be an appropriate hourly rate under EAJA to take into account increases in cost of
living.
However, the timesheet showing the work performed solely by attorneys (Doc.
30-3) indicates that Howard Olinsky, Esq., the Plaintiff’s only counsel of record in this
action, performed only 2.4 hours of billed time, while the remainder was performed by
other attorneys – Paul Eaglin, Marisa Burkett, and Alyssa Van Auken – who have not
appeared in this action.

None of those three attorneys has been admitted to the Bar of

this Court, see S.D. Ala. GenLR 83.3(a)-(b), nor have they ever moved for pro hac vice
admission under S.D. Ala. GenLR 83.3(d), as Olinsky did (see Docs. 4, 5).

Generally,

“unless appearing pro se,…all parties to proceedings in this Court must appear by an

attorney admitted to practice in this Court.”

S.D. Ala. GenLR 83.2 (emphasis

added).
The Eleventh Circuit recently affirmed a decision of the District Court for the
Southern District of Florida to reduce Olinsky’s and Eaglin’s EAJA fees by
compensating them at paralegal rates, rather than attorney rates, when they had not
been admitted to practice in that court under local rules similar to those of this Court.
See Zech v. Comm'r of Soc. Sec., 680 F. App'x 858 (11th Cir. Feb. 23, 2017) (per curiam)
(unpublished) (citing Priestley v. Astrue, 651 F.3d 410 (4th Cir. 2011)).

Exercising

discretion, the undersigned will do the same for the non-admitted attorneys who
performed 21.8 hours of work in the present case.
paralegal billing rate of $100 per hour.

The Plaintiff has requested a

However, the Plaintiff has submitted no

evidence to support the reasonableness of this billing rate, and “[i]n this district,
paralegal work is consistently charged at a rate of $75/hour.”

Brown v. Boeing Co.,

Civil Action No. 12-0414-CG-C, 2012 WL 6045924, at *4 (S.D. Ala. Dec. 4, 2012)
(Granade, J.) (citing cases).
Thus, the Court will award the Plaintiff $615 for the 8.2 hours of work performed
by the paralegals, $1,635 for the 21.8 hours of work performed by the non-admitted
attorneys, and $460.46 for the 2.4 hours of work performed by admitted attorney
Olinsky, for a total EAJA award of $2,710.46.6

The Plaintiff’s motion requests the Court also order that, “[i]f the Plaintiff has no debt
registered with the Department of Treasury subject to offset that the fees be made
payable to the attorney” (Doc. 30 at 4), as the Plaintiff has “agree[d] to waive direct
payment of the EAJA fees and assign said fees to be paid directly to [her] attorney.”
(Doc. 30-5 at 2). EAJA fees are awarded to litigants, rather than to their attorneys,

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II.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the Plaintiff’s
unopposed motion for attorney’s fees (Docs. 29, 30) is GRANTED in part and DENIED
in part, such that Plaintiff MARY DENISE BURTON is awarded from the Defendant
Commissioner of Social Security $2,710.46 in fees and other expenses under the Equal
Access to Justice Act, 28 U.S.C. § 2412.7
DONE and ORDERED this the 26th day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

which “thus subjects them to a federal administrative offset if the litigant has
outstanding federal debts.” Astrue v. Ratliff, 560 U.S. 586, 593 (2010). The Plaintiff’s
“assignment of h[er] right in the fees award to counsel does not overcome the clear EAJA
mandate that the award is to h[er] as the prevailing party, and the fees belong to h[er].”
Brown v. Astrue, 271 F. App'x 741, 743-44 (10th Cir. 2008) (unpublished). Moreover,
“the private contractual arrangement between [the Plaintiff] and h[er] counsel [i]s a
collateral matter the district court d[oes] not need to address when considering [an]
EAJA fees motion.” Id. at 744. See also Panola Land Buying Ass'n v. Clark, 844 F.2d
1506, 1511 (11th Cir. 1988) (“Historically, the client and the lawyer make their fee
arrangement, and the lawyer looks to the client for payment of the legal fee…In
enacting the EAJA, Congress recognized and maintained the attorney-client
relationship as it has existed throughout our history.”); Oguachuba v. I.N.S., 706 F.2d
93, 97 (2d Cir. 1983) (“Whether an award of attorneys' fees under [EAJA] ultimately
redounds to the benefit of counsel depends upon the private contractual arrangements
between the attorney and the client.”). Accordingly, the Court declines to order than
any portion of the fee awarded herein be paid directly to the Plaintiff’s counsel.
Unless a party requests one by motion, 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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