Opinion
Civil Action No. 99-0965-CB-L
March 13, 2001
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. 24). A hearing was held on February 20, 2001. Present were plaintiff's counsel Rose McPhillips, and Assistant U.S. Attorney Patricia Beyer. Upon consideration of all pertinent materials presented, it is determined that Plaintiff should receive a reasonable attorney's fee in the amount of $1,600.00 under the EAJA for 12.8 hours of legal services rendered by Plaintiff's attorney in this Court at the rate of $125 per hour.
FINDINGS OF FACT
1. On June 19, 2000, this Court entered a Rule 58 judgment reversing and remanding this cause to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. (Doc. 19; see also Doc. 17.)
2. Plaintiff filed a non-itemized, general application for attorney's fees under the EAJA on September 17, 2000. (Doc. 20.) Plaintiff filed a supplemental brief in support of the motion for attorney's fees on October 2, 2000 (Doc. 23.) In the brief, Plaintiff requests attorney's fees in the amount of $2,239.40 to compensate Plaintiff's counsel for 15.1 hours of legal services rendered based on an hourly rate of $138.40. Plaintiff further requested $15.00 in compensation for 1.5 hours of clerical time. (Doe. 23, at 5.) (The Court notes that 15.1 hours at $138.40 and 1.5 hours at $10.00 would result in an award of $2,104.84, not $2,239.40.)
3. The Commissioner of Social Security filed an objection to plaintiff's application and brief on November 1, 2000 (Doc. 26). The Commissioner objected to the plaintiff's requested hourly rate of compensation of $138.40 as excessive. Furthermore, the Commissioner objected to a total of 3.8 hours requested for compensation. The Commissioner requested reductions to .05 hours respectively for six .1 hour entries, reductions to .05 hours respectively for two .2 hour entries, reductions to .05 hours respectively for two .3 hour entries. Finally, the Commissioner objected to 2.7 hours of the 3.7 hours itemized for preparation of the EAJA fee petition as excessive. The Commissioner requests a compensation of $1,322.10 for 11.3 hours at $117 per hour, the prevailing market rate for Social Security EAJA fees in the Southern District of Alabama. See Haywood v. Commissioner, No. 95-0130-AH-M (S.D.Ala. 1998).
CONCLUSIONS OF LAW
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 Court remanded this case pursuant to sentence four of 42 U.S.C. § 405(g), which makes the Plaintiff a prevailing party under the EAJA. Furthermore, the United States has the burden of showing that it was substantially justified in this matter. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987). The United States has declined to dispute this issue and therefore has failed to meet its burden.
"[A] party who wins a sentence-four remand order is a prevailing party." Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993).
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 June 19, 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, August 18, 2000. The application filed in this case, bearing a date of September 17, 2000, is timely since it was filed within thirty days of August 18, 2000.
HOURLY RATE UNDER THE E.A.J.A.
With regard to a determination of the hourly rate to apply in a given EAJA case, the express language of the Act, 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). (West 2000).
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).
Therefore, the undersigned first determines the prevailing market rate. Prior to the hearing, plaintiff's counsel submitted affidavits of two Mobile attorneys who practice in Longshore and Harborworkers Act claims, where legal fees of $150 to $225 per hour have been awarded under a statutory scheme by the Department of Labor. (Doc. 23, Attachments B C.) Also, plaintiff's counsel presented an expert witness at the hearing who has experience representing social security claimants in the administrative process and federal court. The witness testified that, based upon his past experience with Social Security and Longshoremen claims, the two fields required similar levels of legal expertise, and the compensation scheme for Longshoremen cases was similar to that for Social Security cases. He further testified that the prevailing statutory rate for prevailing parties in longshoremen cases was $145 to $200 per hour.
The witness testified that he has not done Social Security work since 1996. At the time he stopped practicing in Social Security cases, the witness sought $80 to $85 hourly rates of compensation for legal services rendered.
Subsequent to the hearing, plaintiff's counsel submitted her own survey of twelve law firms in the Southern District of Alabama, documenting hourly billing rates that range from $100-125 per hour for new associates and $160-$350 per hour for partners. ( See Doc. 37.) Plaintiff's counsel also submitted the affidavit of an attorney who has practiced for twelve years in the Southern district, primarily representing longshoreman. The affiant stated that he bills non-contingent clients at $175 per hour, but that he receives a statutory rate of $150 per hour for longshoremen claims. Also, the affiant has handled a small number of Social Security claims and averred that such cases are similar to Longshore and Harbor Worker's claims at the administrative level and in terms of the statutory compensation process. Id.
The plaintiff also presented evidence regarding the fees received in the Northern District of Florida by Bryon Lassiter, a Social Security attorney who has a large practice in this district also. In June and December of 2000, Mr. Lassiter received fees of $125.00 per hour for the same type of work which the plaintiff's counsel has requested fees. (Plaintiff's exhibit #1).
A court "is itself an expert on the question [of attorney's fees] 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." Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994), citing Norman v. Housing Authority, 836 F.2d 1292, 1303 (11th Cir. 1988), quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940). The undersigned does not find that the current court-awarded hourly rate is conclusive of the prevailing market rate. In enacting EAJA, Congress created a scheme for upward adjustment of hourly rates. And yet, there would never be an upward adjustment of hourly rates if, by circular reasoning, the last court-ordered rate was deemed to be the "prevailing market rate." Based on all of the evidence presented, and particularly relying on the evidence concerning the fees received by a Social Security attorney in a neighboring district, the court determines that the prevailing market rate for "similar services provided by lawyers of reasonably comparable skills, experience, and reputation" is $125.00 per hour.
As stated earlier, the EAJA provides that "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) (West 2000). However, consideration of whether to grant a fee over the statutory cap of $125 is only necessary if the market rate is greater than $125.00. As stated above the undersigned has determined that the market rate is $125.00.
The undersigned would note that this Court's role is limited in determining what is fair fee award. The undersigned has no authority to legislate a new statutory cap and can only exceed the cap once counsel has established that the market rate is above $125.00 and that an increase in the cost of living or other special factor justifies raising the rate above $125.00. The Supreme Court analyzed the EAJA statutory cap in Pierce v. Underwood, 487 U.S. 552, 571-72 (1987). The Court stated,
This Court has substituted the new statutory maximum of $125 into its quotations of Pierce, replacing the earlier cap of $75 which was in effect when Pierce was decided.
If `the limited availability of qualified attorneys for the proceedings involved' meant merely that lawyers skilled and experienced enough to try the case are in short supply, it would effectively eliminate the [$125] cap — since the `prevailing market rates for the kind and quality of the services furnished' are obviously determined by the relative supply of that kind of quality and services. [footnote omitted.] `Limited availability' so interpreted would not be a `special factor', but a factor virtually always present when services with a market rate of more than [$125] have been provided. We do not think Congress meant that if the rates for all lawyers in the relevant city — or even in the entire country — come to exceed the [$125] per hour (adjusted for inflation), then that market-minimum rate will govern instead of the statutory cap. To the contrary, the `special factor' formulation suggests Congress thought that [$125] an hour was generally quite enough public reimbursement for lawyers' fees, whatever the local or national market might be. If that is to be so, the exception for `limited availability of qualified attorneys for the proceedings involved' must refer to attorneys `qualified for the proceedings' in some special sense, rather than just in their general legal competence. We think it refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question — as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation. Examples of the former would be an identifiable practice specialty, such as patent law, or knowledge of foreign law or language. Where such qualifications are necessary and can be obtained only at rates in excess of the [$125] cap, reimbursement above that limit is allowed.Pierce, 487 U.S., at 571-72. According to the Supreme Court. Congress has determined that $125 per hour is "quite enough" public reimbursement for Social Security counsel under EAJA, whatever the hourly rates in this District, and even the nation, might be. Pierce, at 572.
The undersigned concludes that the prevailing market rate in June 2000 was $125.00 per hour. An increase in the EAJA fee award to the maximum statutory rate of $125.00 per hour is therefore warranted.
TIME ENTRIES
The defendant also has taken issue with several entries in plaintiff's timesheet. With regard to the reasonableness of the hours claimed by plaintiff's attorney "the fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman v. Housing Authority, 836 F.2d 1292, 1303 (11th Cir. 1988). "[T]he 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." Id. at 1306. See also 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.")
Attached to the plaintiff's fee petition is an affidavit signed by plaintiff's counsel together with a time sheet detailing the description of work performed, the time expended, and the date on which the work was performed. At the hearing, the defendant took issue with several one-tenth hour entries listed by plaintiff, which defendant argued should only be entered as five-hundredths of an hour. When the matter was brought up at the hearing, defense counsel showed plaintiff's expert witness one of the one-sentence notices which plaintiff had billed as requiring 6 minutes to review. Plaintiff's expert stated that he would not bill for reviewing such a notice. Plaintiff's counsel responded that one-tenth of an hour is the minimum amount of time necessary, for smaller increments would be inefficient, leading to excessive attention to timekeeping.
For example, the defendant objected to one-tenth hour entries for plaintiff's January 6, 2000, notice of case transfer; January 28, 2000, notice that motion for extension of time was endorsed granted; March 23, 2000, notice that motion for extension of time was endorsed granted; June 8, 2000, notice that motion for extension of time was endorsed granted. See Docs. 9, 12, 15, 23, 26.
The undersigned has reviewed these documents and finds that, under the circumstances and given the usual number of hours billed by attorneys in similar actions, the following reductions are recommended:
a. the January 6, 2000, entry of .1 hour to review notice of transfer to a new Magistrate Judge is excessive and is reduced by .05 hours to .05 hours;
b. the January 28, 2000, entry of .1 hour to review the notice of order granting motion for extension of time is excessive and is reduced by .05 hours to .05 hours;
c. the March 17, 2000, entry of.3 hours to prepare a one sentence motion for extension of time is excessive and is therefore reduced by .1 hours to .2 hours;
d. the March 23, 2000, entry of .1 hour to review the notice of order granting motion for extension of time is excessive and is reduced by .05 hours to .05 hours;
e. the June 8, 2000, entry of .01 hour to review the notice of order granting motion for extension of time be reduced by .05 hours to .05 hours;
f. the October 1, 2000 entry of 3.7 hours to prepare a petition for attorney's fees is excessive and is therefore reduced by 2.0 hours to 1.7 hours.
Therefore, the undersigned concludes that a claim for 12.8 hours of attorney time expended representing Plaintiff in federal court is reasonable.
With regard to the Plaintiff's request that clerical work be compensated under the EAJA, the Plaintiff has not provided, and the Court has not found, any precedent for the award of clerical fees for work performed by the attorney's clerical staff The expense of a clerical salary is part of an attorney's office overhead expenses and not a separate compensable item under the EAJA.
Secretarial work is part of the everyday activity of a law firm which constitutes its overhead. Secretarial salaries are paid to employees of the firm, and thus are not similar to those monies paid to persons outside the firm such as process servers or witnesses. Furthermore, their salaries cannot be equated with costs, such as filing fees, or expenses such as postage or computer charges, which are similarly paid to entities outside of the law firm. Attorneys cannot be compensated for normal overhead expenses.Taylor Group, Inc. v. Johnson, 919 F. Supp. 1545 (M.D.Ala. 1996). (Citing Louis v. Nelson, 646 F. Supp. 1300 (S.D.Fla. 1986)). It is therefore recommended that Plaintiff's claim for $15 for 1.5 hours of clerical time at a rate of $10 per hour be disallowed.
CONCLUSION
Upon consideration of all matters presented, it is recommended that Plaintiff be awarded attorney's fees in the amount of $1600.00 under the Equal Access to Justice Act, representing compensation for 12.8 hours of service by Rose McPhillips at the rate of $125.00 an hour.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within 10 days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Opposing part's response to the objection . Any opposing party may submit a brief opposing the objection within ten (10) days of being served with a copy of the statement of objection. Fed.R.Civ.P. 72, SD ALA LR 72.4(b).
3. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.