Opinion
Civil Action No. 00-0204-BH-L
January 19, 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. 17). 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 $713.70 under the EAJA for 6.10 hours of legal services rendered by Plaintiffs attorney in this Court.
RECOMMENDED FINDINGS OF FACT
1. On October 23, 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. 16, see also Doc. 14, Report and Recommendation.)
2. The application for attorney's fees under the EAJA was filed on December 28, 2000 (Doc. 17). In the application, Plaintiff requests attorney's fees in the amount of $713.70 to compensate Plaintiffs counsel for 6.10 hours of legal services rendered based on the hourly rate of $117.00.
3. The Commissioner of Social Security filed a response to Plaintiffs EAJA fee application on January 16, 2001 and did not object to the application for attorney's fees. (Doc. 18)
RECOMMENDED 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 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. Strallon 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).
2. The BAJA 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 until this Court's reversal and remand order of October 23, 2000 became final on December 23, 2000, 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). The application filed in this case, bearing a date of December 28, 2000, is timely since it was filed within thirty days of December 23, 2000.
3. With regard to a determination of the hourly rate to apply in a given EAJA case, the express language of the Act, as recently amended, provides in pertinent part as follows:
The EAJA, 28 U.S.C. § 2412 (d)(2)(A), was amended on March 29, 1996, increasing the statutory cap on EAJA fees from $75.00 per hour to $125.00 per hour. These amendments apply to civil actions commenced on or after the date of enactment; therefore, the statutory cap of $125.00 per hour applies in this present action.
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.
4. 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).
5. The prevailing market rate in the Southern District of Alabama is $117.00 per hour. See Jackson v. Apfel, CA 95-0515-P-M; Castro v. Apfel, CA 97-0353-AH-C; and New v. Apfel, 96-486-P-S. Because the market rate is not greater than the statutory rate of $125.00 per hour, this Court need not reach the second step of the Meyer analysis.
6. With regard to the reasonableness of the hours claimed "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.")
In the case sub judice, an itemization of time spent by Plaintiffs counsel describing the work performed, the time expended, and the date on which the work was performed is attached to the Plaintiffs fee petition. 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 number of hours claimed is not unreasonable. Therefore, the Court finds that Plaintiffs claim for 6.10 hours of attorney time expended representing Plaintiff in federal court is reasonable.
CONCLUSION
Therefore, upon consideration of all matters presented, it is recommended that Plaintiff be awarded attorney's fees in the amount of $713.70 under the Equal Access to Justice Act, representing compensation for 6.10 hours of service by Colin B. Kemmerly, 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.
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 ten 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). 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 party'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.