Opinion
CA 00-0535-BH-C
April 10, 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) 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 $1,106.25 under the EAJA for legal services rendered by her attorney in this Court.
FINDINGS OF FACT
1. On February 6, 2001 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. 21; see also Doc. 20)
2. The application for attorney's fees under the EAJA was filed on March 19, 2001 (Doc. 24), some forty-one (41) days after entry of final judgment (compare Id.. with Doc. 21). In the application, plaintiff requests attorney's fees in the amount of $2,437.50 to compensate her attorney for the time spent representing her before this Court as of the date of the filing of the fee application. ( See Doc. 24)
3. The Commissioner of Social Security filed a response to plaintiff's EAJA fee application and therein objects to the number of hours submitted and the requested hourly rate. ( See Doc. 25)
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). It is imminently clear in this case that plaintiff is a prevailing party under the EAJA and that the position of the United States in this case was not substantially 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 February 6, 2001 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, April 7, 2001. The application filed in this case, bearing a date of March 19, 2001, is obviously premature yet no less timely. See Myers v. Sullivan, 916 F.2d 659, 678-679 n. 20 (11th Cir. 1990) ("Even a premature motion is considered timely.").
"[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). justified, the defendant having conceded as much.
3. The EAJA, like 42 U.S.C. § 1988, is a fee-shifting statute. The Supreme Court has indicated that "`the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985) (EAJA), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)(§ 1988); see Jean v. Nelson, 863 F.2d 759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the hours expended in the context of contentions by the government that the fee requests were not supported by sufficient documentation and often involved a duplication of effort), aff'd sub nom. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).
This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court also should exclude from this initial fee calculation hours that were not "reasonably expended" . . . . Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, "billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."Hensley, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (citations omitted); see also Id, at 437, 103 S.Ct. at 1941 ("[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates."); 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."); Norman v. Housing Authority, 836 F.2d 1292, 1301 (11th Cir. 1988)("Excluding excessive or otherwise unnecessary hours under the rubric of "billing judgment' means that a lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights, recognizing that in the private sector the economically rational person engages in some cost benefit analysis.").
4. In Norman, supra, the Eleventh Circuit indicated that "the 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." 836 F.2d at 1306.
5. With these principles in mind, the Magistrate Judge considers the reasonableness of the hours claimed by plaintiff's attorney, Fence Ann S. Goldstein, Esquire. The defendant has filed the following specific objections:
Defendant avers 21 entries are excessive, redundant, and/or unnecessary for the work described in said entries. Accordingly, Defendant objects to at least .20 hours each for reimbursement of attorney time requested in 11 entries (all three entries on 7/14/00, 10/9/00, 10/10/00, 10/13/00, 11/30/00, the second and fourth 12/8/00 entries, 1/11/01, and 2/13/01) for tasks which many attorneys handling Social Security cases in this district only request .05 hours each, and for which several district and magistrate judges in this district have awarded .05 hours or less each. Defendant respectfully requests the court to reduce the number of hours awarded fees for these entries by at least a total of 2.2 hours.
Defendant also objects to .1 hour each for two entries (1/02/01 and 1/03/01) in which Plaintiff claims 15 minutes (.25 hours) for telephone calls with the undersigned and her paralegal. Neither of these calls lasted even ten minutes. Therefore, Defendant objects to any award of time in excess of. 15 hours (nine minutes) for each entry, for a total deduction of .2 hours.
Relatedly, Defendant objects to .95 hours of 1.0 hours requested on 1/11/01 to review Defendant's one and one-half page remand motion as excessive, especially since Defendant does not object to .15 hours of the .25 hours claimed to discuss same with Plaintiff's counsel on 1/03/01. Defendant submits many counsel in this district seek only .05 hours or at the most .10 hours, and are awarded same, for reviewing Defendant's succinct sentence four remand motions . . . . Therefore, Defendant respectfully submits no more than .05 hours is a reasonable amount of time for Plaintiff's counsel to perform said task.
Additionally, Defendant objects to 1.50 hours of the 2.50 hours requested on 2/20/01 to "review file, compile listing of time involved in District Court representation; prepare and finalize EAJA Motion and related documents" as excessive. First, Defendant objects to any amount of time spent reviewing this file after the favorable decision was rendered as unnecessary. Second, the time spent in District Court representation should be kept as a contemporaneous time record throughout the representation which would make any additional time spent at this juncture in preparation of the entire EAJA petition and related documents, in excess of the remaining 1.0 hours to which Defendant did not object, excessive, redundant, and unnecessary. Finally, the EAJA motion itself consists of six one-sentence paragraphs which do not even fill one and one-half pages, and the "related documents" consist of the less than one and one-half page itemization of services rendered with an attached Certificate of Service. Thus, Defendant respectfully contends that any amount of time in excess of 1.0 hours to prepare said documents is unreasonable, and asks this honorable court to so limit any award.
Similarly, the 9.0 hours total requested in two entries (11/10/00 and 11/13/00) for reviewing the 346 page transcript and preparing and filing the 8 page brief (of which the first five pages consist of the procedural history, the standard of review, articulation of the issues, and statement of facts), are excessive given the issues raised in this case and Plaintiff's counsel's familiarity and experience in this field of law. The issues and arguments presented were not unique or of first-impression in this Circuit. Thus, the Defendant respectfully requests this Court to reduce the number of hours for these services by at least 4.5 hours. Defendant also notes that perhaps the second entry, 11/13/00, is merely a clerical error made due to the use of a form time sheet which consistently uses two separate entries to document reviewing the file and preparing the draft brief and then reviewing and finalizing the draft, since Plaintiff's brief was submitted on the date of the first entry, 1/10/00 . . . . In either case, Defendant avers 4.5 hours is a reasonable amount of time to award fees for the work identified in both entries.
Finally, Defendant objects to the total amount of time requested in five entries (10/23/00, the first and third entries on 12/8/00, 1/8/01 and 1/9/01) for a total of 1.25 hours. In the first entry, Plaintiff claims .25 hours for receiving and reviewing the filed copy of his own motion for default judgment. Defendant avers such a task is unnecessary. Defendant's objection to the remaining four entries is due to the fact the identified tasks were not performed in the instant case. These tasks include reviewing a Motion to Supplement the Record and Order granting same, and reviewing a Motion for Extension of Time to File a Proposed Report and Recommendation (five days after Defendant filed the Sentence Four Voluntary Remand) and an order granting same. Again, Defendant respectfully submits these entries are likely the result of clerical errors made by using standard time sheet forms. Thus, Defendant respectfully submits all the time claimed in these five entries b[e] disallowed.
The Commissioner requests that the Court scrutinize counsel's application and award attoney['s] fees only for reasonable hours according to speciality and experience. Defendant, therefore, suggests that Plaintiff's request for attorney time should be reduced by at least 10.6 hours, and the remaining amount of time expended be awarded pursuant to the local prevailing rate of $117.00 per hour.
(Doc. 25, at 4-7 (footnotes omitted)) The Magistrate Judge agrees with most, but not all, of the defendant's objections to Ms. Goldstein's fee petition and also finds several other entries not mentioned by the defendant unreasonable.
6. Goldstein's entries for the receipt and review of standard and/or short court orders (.25), on the following dates are found unreasonable: (1) the July 14, 2000 entry for receipt and review of this Court's essentially one-page order granting plaintiff's in forma pauperis motion (Doc. 3); (2) the July 14, 2000 entry for receipt and review of service of summons which was accomplished on June 19 20, 2000 ( see Docs. 4, 6 7); (3) the July 14, 2000 entry for receipt and review of this Court's standard scheduling order issued in all social security cases, dated in this case on June 16, 2000 (Doc. 5); (4) the October 9, 2000 entry for receipt and review of the September 28, 2000 out-of-time motion for extension of time to file an answer (see Doc. 12, Attachment 1); (5) the October 11, 2000 entry for receipt and review of the October 2, 2000 order issued by the undersigned finding the defendant in default and ordering plaintiff to seek a default judgment (Doc. 9); (6) the October 16, 2000 entry for receipt and review of the defendant's three-page motion for reconsideration of the default order (Doc. 12); (7) the October 16, 2000 entry for receipt and review of the defendant's standard two-page answer filed October 12, 2000 (Doc. 10); (8) the November 30, 2000 entry for receipt and review of the undersigned's two-page order withdrawing the October 3, 2000 order, denying plaintiff's motion for entry of default judgment and granting defendant's motion for reconsideration (Doc. 13); (9) the December 8, 2000 entry for receipt and review of the Court's essentially one-page November 21, 2000 order setting the case for oral argument (Doc. 15); (10) the January 8, 2001 entry for receipt and review of the defendant's essentially one-page December 21, 2000 motion for extension of time to file a proposed report and recommendation (Doc. 16); (11) the January 9, 2001 entry for receipt and review of the one-sentence notice from the Clerk's Office granting the foregoing motion for extension of time (Doc. 17); and (12) the February 13, 2001 entry for receipt and review of the one-page order and one-page judgment from the district court remanding this cause to the Commissioner of Social Security (Docs. 20 21). It was unreasonable for Goldstein to bill even six minutes (.1) for the receipt and review of the foregoing documents inasmuch as the undersigned read each of those documents in less than even one minute and some in a manner of mere seconds. See Payne v. Sullivan, 813 F. Supp. 811, 813 (N.D.Ga. 1992) (court refused to allow recovery for those instances wherein counsel billed 15 or 30 minutes for receiving a letter or court document). Therefore, the undersigned recommends that Goldstein be compensated at the attorney rate for three minutes (.05) of work performed on each of the foregoing dates and that the remaining time on each date not be compensated. Adding together the amounts billed on these dates and subtracting the time unreasonably billed results in compensation at the attorney rate for .60 hours of work performed and the disallowance of the remaining 2.40 hours billed.
Defendant contends that the itemization entries for January 8 9, 2001 fail to reflect work that was performed in this case. However, the undersigned disagrees. Although the two entries were made on dates probably well after the work was actually performed, the defendant did file one motion for extension of time to file his proposed report and recommendation, on December 21, 2000 (Doc. 16), and that motion was endorsed granted by the undersigned on December 22, 2000 (Doc. 17). Though these two entries are due to be compensated, they are due to be compensated at a much more reduced rate than requested by the plaintiff. Payment for attorney work on these two dates, however, does lead to the disallowance entirely of counsel's second itemization entry for December 8, 2000 (i.e., receipt and review of the defendant's motion for extension of time to file his proposed report and recommendation). As aforesaid, only one such motion for extension of time to file the proposed report and recommendation was filed in this case, that occurring on December 21, 2000 (Doc. 16). Necessarily, therefore, the second itemization entry for December 8, 2000 (.25) is due to be disallowed in its entirety.
7. The undersigned also finds unreasonable the time spent by Goldstein on January 11, 2001 (1.25) for receipt and review of the defendant's essentially one-page motion to remand and the undersigned's two-page report and recommendation (Docs. 18 19) The undersigned finds that both documents could be reviewed in much less than twelve minutes (.2) since plaintiff's counsel had spoken both to the U.S. Attorney and the undersigned's office about defendant's motion to remand and stated that plaintiff would interpose no objection to same. Accordingly, the undersigned recommends that Goldstein be compensated at the attorney rate for twelve minutes (.2) of work performed on this date and that the remaining time (1.05) be disallowed.
8. All itemization entries for December 8, 2000 (.25 — three times), save that for receipt and review of the order setting this case for oral argument, are due to be disallowed as there was never a motion to supplement the record, to which two entries on that date relate, and, as aforesaid, the defendant filed only one motion to extend the time to file his proposed report and recommendation and plaintiff's counsel has already been compensated for this work. Moreover, the undersigned agrees with the defendant that the itemization entry for October 23, 2000 (.25) for receipt and review of the plaintiff's own motion for entry of default judgment should be disallowed as unnecessary, since plaintiff was well aware of the contents of such motion when same was filed on October 13, 2000. In light of the foregoing, these four entries, totaling one hour (1.0) should be disallowed.
9. The defendant also objects to the entries on January 2, 2001 (.25) and January 3, 2001 (.25) which reflect telephone calls between plaintiff's counsel and the U.S. Attorney or the latter's paralegal. The defendant avers that neither of these calls lasted even ten minutes and therefore, suggests that a reasonable award for attorney work on these two dates would be nine minutes (.15) each. The undersigned agrees and recommends that a combined total of eighteen minutes (.3) for these two entries be allowed and that the remaining time (.2) be disallowed.
10. The defendant objects to the 2.5 hours reflected on the February 20, 2001 itemization entry for reviewing the file, compiling a listing of time involved on counsel's district court representation and finalizing the EAJA application and related documents. The undersigned has never recommended, nor has an attorney ever requested, more than one hour for completion of an EAJA petition. The keeping of contemporaneous time records, which if not done in this case should have been done, would indicate no need for compilation of time and the instant motion for fees is a bare six sentences. Therefore, one hour (1.0) of the requested time in this entry should be compensated at the attorney rate while the remaining time (1.5 hours) should be disallowed.
11. The defendant's final objection is to the combined 9 hours spent by Goldstein on two dates (i.e., November 10, 2000 and November 13, 2000) for: (1) reviewing the file and preparing a draft of the memorandum of law in support of plaintiff's argument; and (2) reviewing the draft and preparing the final memorandum of law in support of plaintiff's argument. Inasmuch as plaintiff's proposed report and recommendation was signed and served on opposing counsel on November 10, 2000 and filed in this Court at 8:59 a.m. on November 13, 2000, the undersigned must agree with the defendant that the itemization entry for November 13, 2000 (4.5 hours) is a result of computer error. Accordingly, the itemization entry for November 10, 2000 (4.5 hours) is due to be compensated in full but that of November 13, 2000 (4.5 hours) should be disallowed.
12. In her itemization of services rendered, Goldstein requests that she be compensated at the attorney rate for 19.50 hours of work. The undersigned recommends that 8.85 hours be compensated at the attorney rate and that 10.65 hours be disallowed.
13. With respect to a determination of the hourly rate to apply in a given EAJA case, for services performed by attorneys, the express language of the Act, as amended by the Contract with America Advancement Act of 1996, 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) (Cum.Supp. 1997).
14. 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).
15. The prevailing market rate in the Southern District of Alabama has been raised to $125.00 per hour. See, e.g., Boone v. Apfel, CA 99-0965-CB-L (finding the market rate to be $125.00 an hour). Because the market rate is not greater than the statutory rate of $125.00 per hour, the Court need not reach the second step set out in the Meyer case.
16. In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,106.25 under the EAJA for the 8.85 hours her attorney spent performing work traditionally performed by attorneys in social security cases.
CONCLUSION
The Magistrate Judge recommends that plaintiff be awarded attorney's fees in the amount of $1,106.25 under the Equal Access to Justice Act, representing compensation for 8.85 hours of service by Felice Ann S. Goldstein, Esquire, at the market rate of $125.00 an hour.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.