Long v. Berryhill

Filing 27

MEMORANDUM OPINION AND ORDER that plaintiff's motion for attorney fees 24 is GRANTED and that plaintiff is awarded from the Commissioner of Social Security $1,752.03 in attorney fees under EAJA. Signed by Magistrate Judge Katherine P. Nelson on 11/28/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ODELLSIA LONG,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 17-00099-N

MEMORANDUM OPINION AND ORDER
Plaintiff ODELLSIA LONG (hereinafter, “the Plaintiff”) 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) (Doc. 24), requesting an
award of $1,752.03 in attorney’s fees from the Defendant Commissioner of Social
Security. The Commissioner has filed and served a response stating that she “does
not oppose Plaintiff’s Motion for an Award of Attorney’s Fees Pursuant to the Equal
Access to Justice Act” and “agrees to pay Plaintiff $ 1,752.03 in attorney’s fees.”
(Doc. 26). Upon consideration, the Court finds the Plaintiff’s motion for attorney’s
fees (Doc. 24) 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
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. 20, 21).

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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). “[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
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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 672–73).
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)).
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
September 27, 2017, the date the Court entered its “sentence four” remand order
and judgment (Docs. 22, 23). See Fed. R. App. P. 4(a)(1)(B). Thus, the judgment
became no longer appealable after November 27, 2017.2 Plaintiff filed her motion
on October 26, 2017, the application is timely, and the Court has jurisdiction to
consider its merits.3
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
2 Exactly sixty days was Sunday, November 26, 2017.
3 Though the motion was filed well before the deadline to appeal passed, the Court has withheld
ruling on the motion until after the judgment was no longer appealable.

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“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.”).4
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.

Indeed, the Commissioner agreed to the “sentence four”

remand in this action (see Doc. 18), and she does not oppose the Plaintiff’s requested
award of EAJA fees. (See Doc. 26). 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

The Plaintiff’s motion alleges that he “did not have a net worth of two million dollars at the time
this civil action was commenced” (Doc. 24 at 3), and the Commissioner does not dispute this
allegation. Accordingly, the Plaintiff qualifies as a “party” for purposes of the EAJA. See 28 U.S.C. §
2412(d)(2)(B).

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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 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 “calculated at the rate of $194.67 per
hour for 9.00 hours work on this case in federal court.”

(Doc. 24 at 1). After

reviewing the timesheet of Plaintiff’s counsel (Doc. 24-1), the Court finds the
number of billed hours to be reasonable and finds the requested rate to be an
appropriate market rate for similar services provided by lawyers of reasonably

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comparable skills, experience, and reputation.5 Moreover, the 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[ 6 ] 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 March 3, 2017, and the Court’s
sentence-four remand order and judgment were entered on September 27, 2017.
The number of days between those two dates (i.e. excluding the start and end dates)
is 206; thus the “temporal midpoint” between those two dates falls in June 2017.
The relevant CPI–U for June 2017 was 237.346. Plugging the relevant numbers
“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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6 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 (last visited Feb. 3, 2017)).

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into the foregoing formula renders the following equation: ($125 x 237.346) / 152.4.
This calculation yields an hourly rate, adjusted for “cost of living” increases, of
$194.67, 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 the Plaintiff attorney’s fees under EAJA in the
amount of $1,752.03.
II.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Plaintiff’s unopposed motion for attorney’s fees (Doc. 24) is GRANTED and that the
Plaintiff is awarded from the Defendant Commissioner of Social Security $1,752.03
in attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.7
DONE and ORDERED this the 28th day of November 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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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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