Thomas v. Colvin
MEMORANDUM OPINION AND ORDER that plaintiff's application for attorney fees is granted in the amount of $1,752.17. Signed by Magistrate Judge Katherine P. Nelson on 7/21/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PAUL M. THOMAS,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Civil Action No. 16-0579-N
MEMORANDUM OPINION AND ORDER
On July 5, 2017, Plaintiff Paul M. Thomas (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. 23), requesting an award of $1,752.17 in attorney’s fees
from the Defendant Commissioner of Social Security.
On July 20, 2017, the
Commissioner filed and served a response stating that she does not oppose the motion
or the amount requested. (Doc. 25). Upon consideration, the Court finds the Plaintiff’s
EAJA fee application (Doc. 23) is due to be GRANTED.1
“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
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).
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).
“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.” Newsome, 8 F.3d at 777 (citing Myers, 916 F.2d at 672–
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 June 5,
2017. (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 June 5, 2017 (i.e. after August 4, 2017). See Fed. R. App. P. 4(a)(1)(B), 26(a)(1)(C).
Thus, the judgment will become no longer appealable after August 4, 2017. See Fed. R.
App. P. 26(a)(1)(C). Because the Plaintiff filed her EAJA fee application on July 5,
2017, the application is timely, and the Court has jurisdiction to consider its merits.
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 who succeeded in challenging contrary benefits decisions made by the
Secretary of Health and Human Services.”).
“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. (See Doc. 25). 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.
[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
(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 103334.
Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. May 9, 2007) (per
The Plaintiff requests an award of fees based upon an hourly rate of $193.61 per
hour for 9.05 hours of work on this case in federal court.
(Doc. 23 at 1)2.
reviewing the timesheet of Plaintiff’s counsel (Doc. 23-1), the Court finds the number of
billed hours (9.05) 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, 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:
Plaintiff’s counsel has included what he styles an “affidavit of counsel” (Doc. 23-2)
verifying that the timesheet (Doc. 23-1) 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.
“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).
($125/hour) x (CPI–U 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.
The Complaint in this action was filed on November 21, 2017, and the Court’s
Remand Order and Judgment were entered on June 5, 2017.
The number of days
between those two dates is 196; thus the “temporal midpoint” between those two dates
falls in February 2017. The relevant CPI–U for February 2017 was 236.052. Plugging
the relevant numbers into the foregoing formula renders the following equation: $125 x
231.052 / 152.4. This calculation yields an hourly rate, adjusted for “cost of living”
increases, of $193.61, 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
$1,752.17 (i.e. $193.61x 9.05).
In accordance with the foregoing analysis, it is ORDERED and ADJUDGED
that the Plaintiff’s Application for Attorney Fees under EAJA (Doc. 23) is GRANTED
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).
and that the Plaintiff is awarded from the Defendant Commissioner $1,752.17 in
DONE and ORDERED this the 21st day of July 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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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