Golden v. Astrue
ORDER granting in part and denying in part 14 Motion for Attorney Fees; finding as moot 16 Motion for Extension of Time. Ordered by Judge Hugh Lawson on 6/20/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Civil Action 7:10-CV-138 (HL)
MICHAEL J. ASTRUE, Commissioner,
This case is before the Court on Plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 14).
On April 5, 2010, the Court entered an order remanding this case to the
administrative level for further proceedings. (Doc. 12). On June 23, 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. 14).
Plaintiff seeks an award of attorney’s fees in the amount of $4,779.23, to
be paid directly to Plaintiff. The requested fee award consists of $180.56 per hour
for 12.8 hours of work by Charles L. Martin and $180.56 per hour for 13.67 hours
of work by Denise Sarnoff. According to counsel, the hourly rate of $180.56 is
based on the calculated April 2011 Consumer Price Index (“CPI”) hourly rate.
The Commissioner objects to the motion. He argues that counsel is not
entitled to payment of the April 2011 CPI rate for work performed in 2010. He
also argues that the number of hours claimed should be reduced.
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.
Number of hours
The Commissioner contends that the requested hours of attorney work are
excessive and therefore not reasonable. He specifically takes issue with the 4
hours spent by Martin in November of 2010 reviewing the case for merit to
appeal and drafting a file memorandum.
The district court is responsible for excluding any unnecessary work from
the fee award. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292,
1301-02 (11th Cir. 1988). “A court may reduce excessive, redundant or otherwise
unnecessary hours in the exercise of billing judgment.” Perkins v. Mobile Hous.
Bd., 847 F.2d 735, 738 (11th Cir. 1988). As this is an EAJA case, the Court must
consider the reasonableness of time spent under the lodestar method.
Commissioner, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161,
110 S.Ct. 2316 (1990).
It is the Court’s opinion that Plaintiff has requested a reasonable number of
hours. The Court does not find the 4 hours for reviewing the case and drafting a
memo to be excessive, as this case involves a 400-page administrative record.
Plaintiff will receive compensation for the 26.47 hours expended by her attorneys
on this case.
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
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 affidavits from Martin, Roger
J. Dodd, and George T. Talley. All three attorneys opine that the market rate for
attorneys with Martin’s and Sarnoff’s experience exceeds the current statutory
rate with inflation. Thus, the Court must proceed to the second step of the Meyer
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.
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. Sarnoff worked on the case
for 13.67 hours in March 2011. Mr. Martin worked on the case for 5.1 hours in
2010, 0.2 hours in January 2011, 0.5 hours in March 2011, 0.4 hours in April
2011, 1.7 hours in June 2011, and 4.9 hours in July 2011.
Consistent with Hartage and Brown, the Court finds that counsel worked
5.1 hours in 2010 at a rate of $175.06, 0.2 hours in January of 2011 at a rate of
$176.80, 14.17 hours in March 2011 at a rate of $179.41, 0.4 hours in April 2011
at a rate of 180.56, 1.7 hours in June 2011 at a rate of $181.22, and 4.9 hours in
July 2011 at a rate of $181.38.1 The Court does not find that this is an unusual
case where an enhancement should be granted.2 Accordingly, the Court finds
that Plaintiff is entitled to $4,739.46 in attorney’s fees under the EAJA.3
For the reasons discussed above, Plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 14) is granted, in part, and denied,
in part, as outlined herein. Plaintiff is awarded $4,739.46 in attorney’s fees under
the EAJA to be paid directly to Plaintiff. Plaintiff’s Motion for Extension of Time to
File EAJA Reply Brief (Doc. 16) is denied as moot.
1 The Court declines to reduce the hourly fee for Sarnoff’s work to that of a paralegal.
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
is as follows:
[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]
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).
SO ORDERED, this the 20th day of June, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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