Gailey v. Astrue
Filing
18
ORDER granting in part and denying in part 16 Motion for Attorney Fees. Ordered by Judge Hugh Lawson on 6/20/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
JENNIFER L. GAILEY,
Plaintiff,
Civil Action 7:10-CV-22 (HL)
v.
MICHAEL J. ASTRUE, Commissioner,
Defendant.
ORDER
This case is before the Court on Plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 16).
On September 13, 2011, the Court entered an order reversing the
Commissioner’s decision in this matter and remanding it to the administrative
level for further proceedings. (Doc. 14). On December 5, 2011, Plaintiff filed a
motion for attorney’s fees pursuant to 28 U.S.C. § 2412(d), a provision of the
Equal Access to Justice Act (“EAJA”) (Doc. 16).
In the EAJA motion, Plaintiff seeks an award of attorney’s fees in the
amount of $6,703.12, payable directly to Plaintiff. The requested fee award
consists of $182.15 per hour for 8.2 hours of work by Charles L. Martin and
$182.15 per hour for 28.60 hours of work by Perrie H. Naides. According to
counsel, the hourly rate of $182.15 is based on the calculated September 2011
Consumer Price Index (“CPI”) hourly rate.
The Commissioner objects to the motion, and argues that counsel is not
entitled to payment of the September 2011 CPI rate for work performed in 2010.
I.
ANALYSIS
The EAJA, as codified at 28 U.S.C. § 2412(d)(1)(A), provides that:
a court shall award to a prevailing party other than the
United States fees and other expenses, . . . incurred by
that party in any civil action . . . brought by or against
the United States in any court having jurisdiction of that
action, unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
Subsection (d)(2)(A) further provides that awards of attorney’s fees shall
be based on prevailing market rates for comparable services, but that fees in
excess of $125 per hour shall not be awarded “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).
There is no dispute that Plaintiff is the prevailing party in this case.
1.
Hourly Rate
The Eleventh Circuit held in Meyer v. Sullivan, 958 F.2d 1029 (11th Cir.
1992), that the EAJA establishes a two-step analysis for determining the
appropriate hourly rate to be applied in calculating attorney’s fees under the Act:
The first step in the analysis, . . . is to determine the
market rate for ‘similar services [provided] by lawyers of
reasonably comparable skills, experience, and
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reputation.’. . .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 (citations and footnote omitted).
The first step under Meyer is for the Court to determine the relevant market
rate. The Eleventh Circuit has stated that:
The applicant bears the burden of producing
satisfactory evidence that the requested rate is in line
with prevailing market rates. Satisfactory evidence at a
minimum is more than the affidavit of the attorney
performing the work....Satisfactory evidence necessarily
must speak to rates actually billed and paid in similar
lawsuits. Testimony that a given fee is reasonable is
therefore unsatisfactory evidence of market rate.
Evidence of rates may be adduced through direct
evidence of charges by lawyers under similar
circumstances or by opinion evidence. The weight to be
given to opinion evidence of course will be affected by
the detail contained in the testimony on matters such as
similarity of skill, reputation, experience, similarity of
case and client, and breadth of the sample of which the
expert has knowledge.
Norman, 836 F.2d at 1299 (internal citations omitted).
To establish the market rate, Plaintiff provides an affidavit from Martin, one
of the attorneys who worked on this case. He opines that the fair market value of
attorney services for work before the Social Security Administration is in excess
of $225 per hour.
Plaintiff has provided no evidence as to market rate other than the affidavit
of Martin. That alone is not sufficient to establish the relevant market rate. See
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Norman, 863 F.2d at 1299. However, the Court may also consider its own
knowledge and experience and form an independent judgment as to the relevant
market rate. Id. at 1304. The Court is also aware that other judges in this division
have determined the market rate for Martin to be $180 per hour. See Hosley v.
Astrue, No. 5:09-CV-379 (MTT), 2011 WL 3300687 (M.D. Ga. Aug. 2, 2011). It
has also previously been determined that the market rate for the services of
Naides exceeds the maximum statutory rate of $125. See Taylor v. Astrue, No.
5:09-CV-146 (HL), 2011 WL 7025139 (M.D. Ga. Dec. 15, 2011); Brown v. Astrue,
No. 5:10-CV-49 (MTT), 2011 WL 3296165 (M.D. Ga. Aug. 2, 2011). Because the
Court finds that the market rate for the services of Martin and Naides exceeds
the maximum statutory rate of $125 per hour, it must proceed to the second step
of the Meyer analysis.
The Court cannot find a reason to decline to apply the cost-of-living
escalator. Judge Clay Land in Hartage v. Astrue, No. 4:09-CV-48 (CDL), 2011
WL 1123401 (M.D. Ga. Mar. 24, 2011), as adopted by Judge Marc Treadwell in
Brown v. Astrue, No. 5:10-CV-49 (MTT), 2011 WL 3296165 (M.D. Ga. Aug. 2,
2011), clarified the proper way to calculate the amount of inflation when
determining EAJA attorney’s fees. In Hartage, the court reasoned that the
reasonable attorney’s fees must reflect the year in which the work was performed
and that “enhancements to compensate for a delay in payment should be
reserved for unusual cases, such as cases ‘where the delay is unjustifiably
caused by the defense.’” Hartage, 2011 WL 1123401, at *2 (quoting Perdue v.
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Kenny A. ex rel. Winn, --- U.S. ---, 130 S.Ct. 1662, 1675 (2010)). Judge Land did
not find that the case was unusual and did not apply an enhancement. He
calculated attorney’s fees based upon the annual average CPI for 2009 and
2010. He applied the February 2011 CPI for work performed that month.
Similarly in Brown, Judge Treadwell found that the case was not unusual
and did not apply an enhancement. As the EAJA motion was filed in 2011, and
work was done on the case in 2010, January 2011, February 2011, and April
2011, Judge Treadwell determined that the appropriate rates to be paid were the
CPI adjusted rates for 2010, January 2011, February 2011, and April 2011.
Brown, 2011 WL 3296165, at *2.
Here, the EAJA motion was filed in 2011. Ms. Naides worked on the case
for 28.6 hours in 2010. Mr. Martin worked on the case for 7 hours in 2010, 0.1
hours in August 2011, 0.1 hours in September 2011, and 1 hour in December
2011.
Consistent with Hartage and Brown, the Court finds that counsel worked
35.6 hours in 2010 at a rate of $175.06, 0.1 hours in August 2011 at a rate of
$181.88, 0.1 hours in September 2011 at a rate of $181.78, and 1 hour in
December 2011 at a rate of $180.59. The Court does not find that this is an
unusual case where an enhancement should be granted.1 Accordingly, the Court
1
Counsel in this matter should now be well aware of the proper computation for
determining the hourly rate for attorney’s fees performed both in years prior to an EAJA
motion being filed, and the actual year the motion is filed. The computation is as follows:
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finds that Plaintiff is entitled to $6,449.10 in attorney’s fees under the EAJA.2
II.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 16) is granted, in part, and denied,
in part, as outlined herein. Plaintiff is awarded $6,449.10 in attorney’s fees under
the EAJA to be paid directly to Plaintiff.
SO ORDERED, this the 20th day of June, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh
[The average CPI for the year in which the work was
performed or, if work was performed in the year that
the motion was filed, the average CPI for the month
in which the work was performed]
___________________________________________ X
155.7 [March 1996’s average CPI,
the month the statutory cap changed from $75]
125 [the statutory cap]
Lawton v. Astrue, No. 5:09-CV-239, 2012 WL 1119459 (M.D. Ga. Apr. 3, 2012).
2
Year
2010
Aug. 2011
Sept. 2011
Dec. 2011
Rate
$175.06
$181.88
$181.78
$180.59
Hours
35.6
0.1
0.1
1
Total
$6,232.14
$18.19
$18.18
$180.59
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