Opinion
CA 00-0176-CB-C
January 3, 2001
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that plaintiff be awarded attorney's fees in the amount of $1,579.50 under the Equal Access to Justice Act, 28 U.S.C. § 2412.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated December 21, 2000, is ADOPTED as the opinion of this Court.
REPORT AND RECOMMENDATION
This cause is before the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B) and Rule 54(d)(2)(D) of the Federal Rules of Civil Procedure on plaintiff's application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 28) Upon consideration of all pertinent materials contained in this file, it is determined that plaintiff should receive a reasonable attorney's fee in the amount of $1,579.50 under the EAJA for legal services rendered in this Court.
FINDINGS OF FACT
1. On October 12, 2000, this Court entered a Rule 58 judgment reversing and remanding this cause to the Commissioner of Social Security pursuant to 42 U.S.C. § 405 (g) for further proceedings. (Doc. 27; see also Doc. 26)
2. The application for attorney's fees under the EAJA was filed on November 16, 2000 (Doc. 28), some thirty-five (35) days after entry of final judgment ( compare Id. with Doc. 27). In the application, plaintiff requests attorney's fees in the amount of $1,569.11 to compensate her attorney for the time spent representing her before this Court as of the date of the filing of the fee application. ( See Doc. 28)
3. The Commissioner of Social Security filed a response to plaintiff's EAJA fee application on December 18, 2000, and therein objects to the requested hourly rate and the number of hours claimed. (Doc. 30)
The defendant correctly points out that though the application for fees makes a request for compensation of 12.65 hours of legal work (Doc. 28, at 1). counting the hours on the itemization renders a total of 15.15 hours of legal work performed ( id., Itemization). The Court will, as the defendant did, consider the request as seeking compensation for 15.15 hours of legal work.
CONCLUSIONS OF LAW
1. The Equal Access to Justice Act requires a district court to "award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . ., 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." 28 U.S.C. § 2412 (d)(1)(A). The Commissioner makes no argument in his opposition that the position of the United States in this case was substantially justified or that plaintiff is not a prevailing party under the EAJA. ( See Doc. 28) Thus, the undersigned focuses his attention on other matters.2. The EAJA requires a prevailing party to file an application for attorney's fees within thirty (30) days of final judgment in the action. 28 U.S.C. § 2412 (d)(1)(B). The thirty-day clock did not begin to run in this case until this Court's reversal and remand order of October 12, 2000 became final, which occurred at the end of the sixty (60) days for appeal provided under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993), that is, December 11, 2000. The application filed in this case, bearing a date of November 16, 2000, is premature yet no less timely. See Myers v. Sullivan, 916 F.2d 659, 678-679 n. 20 (11th Cir. 1990) ("Even a premature motion is considered timely.").
3. The EAJA, like 42 U.S.C. § 1988, is a fee-shifting statute. The Supreme Court has indicated that "`the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985) (EAJA), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)(§ 1988); see Jean v. Nelson, 863 F.2d 759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the hours expended in the context of contentions by the government that the fee requests were not supported by sufficient documentation and often involved a duplication of effort), aff'd sub nom. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).
This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." . . . Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, `billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."Hensley, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (citations omitted); see also Id., at 437, 103 S.Ct. at 1941 ("[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates"); ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) ("If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are `excessive, redundant, or otherwise unnecessary.' Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded."); Norman v. Housing Authority, 836 F.2d 1292, 1301 (11th Cir. 1988) ("Excluding excessive or otherwise unnecessary hours under the rubric of `billing judgment' means that a lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights, recognizing that in the private sector the economically rational person engages in some cost benefit analysis").
4. In Norman, supra, the Eleventh Circuit indicated that "the measure of reasonable hours is determined by the profession's judgment of the time that may be conscionably billed and not the least time in which it might theoretically have been done." 836 F.2d at 1306.
5. With these principles in mind, the Magistrate Judge considers the reasonableness of the hours claimed by plaintiff's attorney, William T. Coplin, Jr., Esquire. The defendant has made the following specific objections:
A review of the EAJA petition reveals 12 entries which are excessive for the work described in said entries. The entries to which the Defendant objects on the basis of unnecessary effort, or excessive time requested, are: 03/02/00; 03/03/00; 06/02/00; 06/05/00; 06/15/00; 06/23/00; 06/28/00; 07/14/00; 09/11/00; 09/15/00; 09/18/00; and 09/25/00. The tasks identified in each of these twelve entries are either very similar or identical to tasks identified in other EAJA applications in which social security attorneys, including counsel in the instant matter, typically seek no more than .05 hours and/or are awarded no more than .05 hours by either the Magistrate Judges or the District Judges in this district. The tasks identified are reviewing standard one paragraph/page documents, including Defendant's sixteen-line Memorandum for a Sentence Four Remand and the court's Order granting said remand.
(Doc. 30, at 4 (footnote omitted)) The undersigned agrees with all of the defendant's objections to plaintiff's application for attorney's fees.
6. Coplin's entries for the receipt and review of standard court orders and notices, motions for extension of time, and the like (.15, .25 or .50) on the following dates are found unreasonable: (1) the March 2, 2000 entry (.15) for receipt and review of a standard two-paragraph court order granting plaintiff's motion to proceed informa pauperis (Doc. 4); (2) the March 3, 2000 entry (.15) for receipt and review of this Court's standing order issued in all social security cases (Doc. 6); (3) the June 2, 2000 entry (.15) for receipt and review of the defendant's two-paragraph motion for an extension of time to answer (Doc. 10); (4) the June 5, 2000 entry (.15) for receipt and review of a two-sentence notice from the Clerk's Office that the defendant's motion for extension of time to answer had been granted (Doc. 11); (5) the June 15, 2000 entry (.15) for receipt and review of a one-line notice from the Clerk's Office advising the parties that plaintiff's motion to amend the complaint had been granted (Doc. 13); (6) the June 23, 2000 entry (.15) for receipt and review of this Court's one-paragraph order setting this case for oral argument (Doc. 16); (7) the June 28, 2000 entry (.15) for receipt and review of a one-line notice from the Clerk's Office that plaintiff's own motion for extension of time had been granted (Doc. 19); (8) the July 14, 2000 entry (.15) for receipt and review of the defendant's amended answer (Doc. 20); (9) the September 11, 2000 entry (.15) for receipt and review of the defendant's essentially one-page motion for an extension of time to file his proposed report and recommendation (Doc. 22); (10) the September 15, 2000 entry (.5) for receipt and review of the essentially one-page motion to remand filed by the defendant (Doc. 23); (11) the September 18. 2000 entry (.15) for receipt and review of a two-sentence notice from the Clerk's Office advising the parties of the granting of the defendant's motion for extension of time (Doc. 24); and (12) the September 25, 2000 entry (.25) for receipt and review of the undersigned's two-page report and recommendation (Doc. 25). It was unreasonable for Coplin to bill even six minutes (.1) for the receipt and review of the foregoing documents particularly since the undersigned read most of these documents in a matter of mere seconds and each and every one of these documents in less than two minutes. See Payne v. Sullivan, 813 F. Supp. 811, 813 (N.D.Ga. 1992) (court refused to allow recovery for those instances wherein counsel billed 15 or 30 minutes for receiving a letter or court document). Therefore, the undersigned recommends that Coplin be compensated at the attorney rate for three minutes (.05) of work performed on each of the foregoing dates and that the remaining time on each date not be compensated. Adding together the amounts billed on these dates and subtracting the time unreasonably billed results in compensation at the attorney rate for .6 hours of work performed and the disallowance of the remaining 1.65 hours billed.
7. With respect to a determination of the hourly rate to apply in a given EAJA case, for services performed by attorneys, the express language of the Act, as amended by the Contract with America Advancement Act of 1996, provides in pertinent part as follows:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125.00 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) (Cum.Supp. 1997).
8. In Meyer v. Sullivan, 958 F.2d 1029 (1992), the Eleventh Circuit determined 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 1033-1034 (citations and footnote omitted).
9. The prevailing market rate in the Southern District of Alabama is $117.00 per hour. Woodward v. Apfel, CA 95-1009-P-M (recognizing a prevailing market rate of $117.00); Haywood v. Apfel, CA 95-0130-AH-M (same). Because the market rate is not greater than the statutory rate of $125.00 per hour, the Court need not reach the second step set out in the Meyer case. The formula suggested by plaintiff's counsel for calculating the proper rate (Doc. 28, at 2) has not been accepted by this Court and therefore, it will not be used.
10. In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,579.50 under the EAJA for the 13.50 hours her attorney spent performing work traditionally performed by attorneys in social security cases.
CONCLUSION
The Magistrate Judge recommends that plaintiff be awarded attorney's fees in the amount of $1,579.50 under the Equal Access to Justice Act, representing compensation for 13.50 hours of service by William T. Coplin, Jr., Esquire, at the market rate of $117.00 an hour.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.