Opinion
No. 98-0662-CB-S
Filed September 1, 2000
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on Plaintiffs Application for Attorney Fees Under the Equal Access to Justice Act (Doc. 24) and Defendant's Response to Plaintiffs Application for Attorney Fees Under the EAJA (Doc. 26). These motions have been referred to the undersigned magistrate judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Rule 72.2(c)(3). Upon consideration of all matters presented, it is the recommendation of the undersigned that Plaintiff should receive a reasonable attorney's fee in the amount of $2,709.20.
FINDINGS OF FACT
1. On February 8, 2000, this Court entered a Fed.R.Civ.P. 58 Judgment (Docs. 22 and 23) pursuant to sentence four of 42 U.S.C. § 405(g) reversing and remanding this cause to the Commissioner of Social Security for further proceedings.
2. Plaintiffs application for attorney's fees was filed on March 28, 2000 (Doc. 24). In this application, Plaintiff requests an attorney's fee of $117.00 per hour for a total of $2,825.55 for the 24.15 hours Plaintiffs attorney spent representing Plaintiff before this Court. However, after discussions with Defendant's Counsel, the parties have stipulated to a reasonable attorney's fee and clerical fee as follows: an attorney's fee of $2,702.70, which is comprised of 23.10 hours paid at $117.00 per hour; and a clerical fee of $6.50, which is comprised of .65 hours paid at $10.00 per hour; for a total of $2,709.20.
3. The Commissioner of Social Security has filed Defendant's Response to Plaintiffs Application for Attorney Fees Under the BAJA (Doc. 26) to Plaintiffs fee application in which the Commissioner stipulates to the attorney's fee and clerical fee as set out in paragraph two above.
CONCLUSIONS OF LAW
1. The Equal Access to Justice Act (EAJA) 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 does not dispute the issues of prevailing party status, timeliness, or substantial justification.
"[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 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 in this action until this Court's Order of Judgment dated February 8, 2000 (Docs. 22 and 23) became final, which would have occurred at the end of the sixty (60) days for appeal provided under Fed.R.App.P. 4(a)(1).See Shalala v. Schaefer, 509 U.S. at 302, 113 S.Ct. at 2632. Because, Plaintiffs application was filed on March 28, 2000 (Doc.24), it is found to be timely filed.
2. 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 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 . . . attorneys 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).
3. In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 1992), the Court determined that the EAJA establishes a two-step analysis for determining the appropriate hourly rate to be applied in calculating attorneys 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 [$125.00] per hour, is to determine whether the court should adjust the hourly fee upward from [$125.00] to take into account an increase in the cost of living, or a special factor.
Id. at 1033-34 (citations and footnote omitted).
4. The prevailing market rate in the Southern District of Alabama has been previously determined to be $117.00 per hour. See Jackson v. Apfel, 95-0515-P-M; Castro v. Apfel, 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.
5. 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 Auth., 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. In the case sub judice, attached to 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 is not unreasonable. Therefore, the Court finds that Plaintiffs claim for 23.10 hours of attorney time and .65 hours of clerical time expended representing Plaintiff in federal court is reasonable.
CONCLUSION
Therefore, upon consideration of all matters presented, it is the recommendation of the undersigned magistrate judge that Plaintiff's Motion for an Award of Attorney's Fees Pursuant to EAJA be GRANTED, and that the award be limited to the EAJA rate of $117.00 per hour for attorney time and $10.00 per hour for clerical time resulting in an award of $2,709.20.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.