Opinion
Civil Action 99-0911-RV-M.
September 18, 2000.
REPORT AND RECOMMENDATION
Pending before the Court is a Motion for an Award of Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. 21) and Defendant's Response to Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. 24), which have been referred for report and recommendation. After consideration of the pertinent pleadings, it is recommended that the application be granted and that Plaintiff be awarded an EAJA attorney's fee in the amount of $1,725.75.
Plaintiff filed this action on October 4, 1999 (Doc. 1). On June 16, 2000, the Court entered judgment reversing the decision of Defendant and remanding this action for further administrative proceedings (Docs. 17 and 18). Defendant did not appeal and on July 27, 2000, felice Ann S. Goldstein, counsel for Plaintiff, filed a Motion for an Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, in which Plaintiff requests a fee of $2,424.60, computed at an hourly rate of $134.70 for 18.00 hours spent in this Court (Doc. 21). Defendant in his Response concedes that Plaintiff is entitled to attorney's fees but objects to 3.25 hours of the time claimed expended and the requested hourly rate of $134.70. Defendant does not object to an hourly rite of $117.00 (Doc. 24). Defendant requests in his Response that the Court award a fee of no more than $1,725.75 for 836 F.2d 1292, 1303 (11th Cir. 1988). Where documentation is inadequate, the court is not relieved of its obligation to award a reasonable fee, but the court traditionally has had the power to make such an award without the need of further pleadings or an evidentiary hearing. Id.
In her Application, Plaintiff has requested the Court to award a fee computed at an hourly rate of $134.70. Other than requesting that hourly rate, Plaintiff has not otherwise documented it; therefore, the documentation before the Court is inadequate and the Court must arrive at an hourly rate based on its own experience.
This Court in March and April 1998 determined that the prevailing market rate, adjusted for the increase in the cost of living, is $117.00 per hour in the Southern District of Alabama, and that this hourly rate is reasonable. See Woodard v. Apfel, 95-1009-P-M (S.D.Ala. March 18, 1998); Haywood v. Apfel, 95-0130- AH-M (S.D.Ala. April 3, 1998). Multiplying the 14.75 hours by the Southern District of Alabama inflation-adjusted prevailing market rate of $117.00 results in a fee of $1,725.75.
Therefore, it is recommended that Plaintiff's Application be granted as set out above and that Plaintiff be awarded an EAJA attorney's fee in the amount of $1,725.75.
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); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). 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 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. 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.