Opinion
Civil Action No. 99-0879-P-L.
August 30, 2000.
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the Plaintiff be awarded attorney fees in the amount of $1,140.75 under the Equal Access to Justice Act, 28 U.S.C. § 2412, for legal services rendered by Plaintiff's attorney in this Court.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated the 31st of July, 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. 24). 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 $1,140.75 under the EAJA for 9.75 hours of legal services rendered by Plaintiff's attorney in this Court.
RECOMMENDED FINDINGS OF FACT
1. On April 28, 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. 12; see also Doc. 10.).
2. The application for attorney's fees under the EAJA was filed on July 13, 2000 (Doc. 13) In the application, Plaintiff requests attorney's fees in the amount of $1,251.90 to compensate plaintiffs counsel for 10.7 hours of legal services rendered based on the hourly rate of $117.00 an hour for 00 hours.
3. The Commissioner of Social Security filed a response to Plaintiff's EAJA fee application on July 13, 2000, and therein objected to the application for attorney's fees. (See Doc. 14.) The Commissioner objected to a total of .95 hours in plaintiff's application as being excessive and requested reductions to .05 hours respectively for seven entries. For the 1.35 hours at issue, the reductions requested would result in a total award for the disputed entries of .40 hours. The defendant contacted plaintiffs counsel and states that plaintiffs counsel does not object to defendant's recommendation that the EAJA fee award be reduced by .95 hours for a total 9.75 hours.
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. 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).
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 April 28, 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 (1993), that is, June 27, 2000. The application filed in this case, bearing a date of July 13, 2000, is timely since it was filed within thirty days of June 27, 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 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.")
In the case sub judice, 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. 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, as modified by the mutual agreement of the parties, is not unreasonable.
CONCLUSION
Therefore, upon consideration of all matters presented, it is recommended that Plaintiff be awarded attorney's fees in the amount of $1,140.75 under the Equal Access to Justice Act, representing compensation for 9.75 hours of service by Byron Lassiter, Esq., 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.