Opinion
3:00-CV-567 (JORDAN/SHIRLEY)
October 28, 2002
REPORT AND RECOMMENDATION
This case is before the undersigned pursuant to 28 U.S.C. § 636 (b) and Rule 72(b) of the Federal Rules of Civil Procedure, for a report and recommendation regarding disposition by the District Court of the plaintiff's motion for an award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d). [Docs. 22 and 23].
On January 14, 2002 the Honorable Leon Jordan, United States District Judge, ordered that this case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). [Docs. 20 and 21].
Four conditions must be met before an attorney is entitled to EAJA attorney's fees:
1. The plaintiff must be a prevailing party;
2. The government's position must be without substantial justification;
3. No special circumstances warranting denial of fees may exist; and
4. The application for attorney's fees must be filed within 30 days of the final judgment in the action.
AMOUNT OF FEES
The plaintiff asserts that she has met all of these conditions and that she is entitled to an award of attorneys' fees under the EAJA. [Doc. 23]. Therefore, she and her counsel, Eric L. Buchanan, Esq., and Donna Harrison Green, Esq., of Dale L. Buchanan and Associates, move the court, pursuant to the EAJA, 28 U.S.C. § 2412 (d), for an order awarding them their attorneys' fees and costs in the amount of $2,089.40 ($138.00 per hour for 11.20 attorney hours, $46.00 per hour for 11.30 paralegal hours, and $24.00 for the service of process fee paid to commence this action). [Docs. 22 and 23].The Commissioner in her response stated that she does not oppose the plaintiff's motion for attorneys' fees. However, she does oppose the method used by the plaintiff to calculate the amount of fees she requests. [Doc. 28].
Hourly Rate for Attorney Services Under the EAJA
The plaintiff argues that under EAJA the Court should award fees based on the prevailing market rate for the kind and quality of services furnished. See 28 U.S.C. § 2412(d)(2)(A). In February 2001 this Court set the hourly rate for attorney services at $135.00 and for paralegal time at $45.00 under the EAJA. See London v. Halter, 134 F. Supp.2d 940 (E.D. Tenn. 2001). In Eaves v. Massanari, 1:00-CV-276 (E.D. Tenn., September 18, 2001), United States District Judge R. Allan Edgar stated the following:
This Court recognizes that it has the discretion to consider a cost-of-living adjustment in approving attorney fees, and does not object to doing so. However, as a matter of policy, this Court will only make that adjustment annually in January of each calendar year. The administrative burden of checking the cost-of-living adjustment at any given moment is not something which this Court has the resources to accomplish.
The plaintiff argues that the annual cost-of-living adjustment ("COLA") discussed in Eaves should be implemented for 2002 and that the hourly rate for attorney services should be increased from $135.00 to $138.00 under the EAJA. [Doc. 23]. The plaintiff is using the Bureau of Labor Statistics, South urban, Size B/C, Consumer Price Index ("CPI"), for November 2001, which was 108.2, to calculate the COLA. Therefore, according to her calculations, the current hourly rate for attorney services should be $137.77 ($134.72 at 105.8 equates to $137.77 at 108.2) or rounded to $138.00, as has been this Court's practice in the past.
While the Commissioner does not oppose an award of attorneys' fees in this case, she does object to the way in which the plaintiff calculated the amount of fees. She asserts that the plaintiff uses the current CPI, whereas she contends that if a COLA is applied, it should be calculated based upon when services were performed, not on when the award is made. The Commissioner argues that using the CPI in effect at the time of the fee request, rather than using the CPI that existed when services were rendered, compensates a plaintiff for delay in payment. [Doc. 27].
The Commissioner advises that there are at least ten other EAJA petitions pending in this district involving the law firm of plaintiff's attorneys.
Pursuant to Eaves, and Judge Edgar's instruction, the United States Magistrate Judges for the Eastern District of Tennessee met to determine what, if any, annual COLA would be appropriate in approving attorney's fees. In arriving at their decision, the Magistrate Judges used the Bureau of Labor Statistics, South urban, Size B/C, CPI for determining the appropriate hourly rate for attorney services under the EAJA. The Magistrate Judges determined that the annual average CPI for the preceding year would be used in January of the following year to determine the COLA for that year.
For example, the annual average CPI for 2001 was 109.6. Using a base CPI of 100.3 in January 1997 with an hourly rate at that time of $125.00 per hour, the hourly rate using a CPI of 109.6 is $137.00. Therefore, the hourly rate for attorney services under the EAJA shall be increased from $135.00 to $137.00, effective January 1, 2002, and that the $137.00 per hour rate is applicable to all services rendered after January 1, 2002 through December 31, 2002. Charges for attorney services rendered before January 1, 2002 shall be paid at the prevailing rate at that time, which was $135.00 per hour.
The hourly rate for attorney's fees under the EAJA has been $135.00 since London. Although the Commissioner has advocated a six-month adjustment and even a monthly adjustment of the EAJA fee using the most current CPI, this Court, as Judge Edgar noted in Eaves, does not have the administrative resources to undertake such a task.
Hourly Rate for Paralegal Services Under the EAJA
Plaintiff asserts that compensation for paralegal services should be increased from $45.00 per hour to the rate of $46.00 per hour. [Doc. 27]. However, the Commissioner contends that the plaintiff is not entitled to a COLA for paralegal services, citing London v. Halter, 134 F. Supp.2d 940, 944 (E.D. Tenn. 2001). The undersigned agrees that plaintiff is not entitled to a COLA for paralegal services. However, consideration of the effect of a COLA may be one factor in determining the prevailing market rate.
Plaintiff does not concede that $46.00 is the reasonable market rate for compensation of paralegal time.
The United States Magistrate Judges from the Eastern District of Tennessee have further undertaken the task of researching and determining the prevailing market rate for paralegal services. It has been determined that the plaintiff's request of $46.00 per hour coincides with the Magistrate Judges's determination of the prevailing market rate for paralegal services. Therefore, effective January 1, 2002, the $46.00 per hour rate is applicable to all paralegal services rendered after January 1, 2002. Charges for paralegal services rendered before January 1, 2002 shall be paid at the prevailing rate at that time, which was $45.00 per hour.
CONCLUSION
Accordingly, it is hereby RECOMMENDED that plaintiff's petition for an award of attorneys' fees and costs be GRANTED in the amount of $2,048.90 under the EAJA as follows:
Any objections to this Report and Recommendation must be served and filed within ten (10) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).
Time Spent Before January 1, 2002
Attorney Time — 10.20 hours — @ 135.00 per hour — $ 1,377.00 Paralegal Time — 8.90 hours — @ 45.00 per hour — 400.50 _________ $ 1,777.50Time Spent After January 1, 2002
Attorney Time — 1.00 hour — @ 137.00 per hour — $ 137.00 Paralegal Time — 2.40 hours — @ 46.00 per hour — $ 110.40 Service of process 24.00 ________ $ 271.40 TOTAL $ 2,048.90It is further RECOMMENDED that the hourly rates and adjustments herein serve as the hourly rates and adjustments in subsequent approvals of EAJA fee awards.