Opinion
CA 00-0086-P-C.
January 4, 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. ( See Doc. 20) Upon consideration of all pertinent, ___ FDCR 2d ___ (Mo. 1999) materials contained in this file, it is determined that plaintiff should receive a reasonable attorney's fee in the amount of $1,516.15 under the EAJA for legal and clerical services rendered in this Court.
FINDINGS OF FACT
1. On September 15, 2000, this Court entered a Rule 58 judgment reversing and remanding this cause to the Commissioner of Social Security pursuant to 42 U.S.C. § 405 (g) for further proceedings. (Doc. 19; see also Doc. 18)
2. The application for attorney's fees under the EAJA was filed on October 23, 2000 (Doc. 20), some thirty-eight days after entry of final judgment ( compare Id. with Doc. 19). In the application, plaintiff requests attorney's fees in the amount of $1,987.50 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. 20)
3. The Commissioner of Social Security filed an opposition to plaintiff's EAJA fee application on November 22, 2000 and therein objects to the number of hours submitted and the requested hourly rate. ( See Doc. 22)
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 was not substantially justified, the defendant having conceded as much. ( See Doc. 22)
"[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 September 15, 2000 became final, which would have 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, November 14, 2000. The application filed in this case, bearing a date of January 9, 2000, is 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.").
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, 1586 (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 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. Moreover, while "a fee applicant is not entitled to compensation at an attorney's rate simply because an attorney undertook tasks which were mundane, clerical or which did not require the full exercise of an attorney's education and judgment[,]" the applicant is entitled to be compensated at a judicially noticed clerical rate for such work. See Id. ("To be sure, the trial judge can judicially notice a rate for bookkeeping work or work customarily done by paralegals and it is equally true that a fee applicant is not entitled to compensation at an attorney's rate simply because an attorney undertook tasks which were mundane, clerical or which did not require the full exercise of an attorney's education and judgment."). 5. With these principles in mind, the Magistrate Judge considers the reasonableness of the hours claimed by plaintiff's attorney, R. Michael Booker, Esquire. The defendant has specifically objected to a total of 2.45 hours claimed by plaintiff's counsel.
The undersigned has always begrudgingly read Norman to require that counsel be compensated for clerical tasks, albeit at a judicially noticed clerical rate. A judicially-noticed clerical rate, however, need not be comparable to the paralegal rate, or for that matter an hourly wage paid to law clerks, particularly in light of the fact that many courts refuse to compensate attorney's for the performance of clerical tasks based upon the very commonsensical belief that such tasks (for example, filing documents and serving opposing counsel) should reasonably be performed by support staff and therefore included in counsel's overhead, see, e.g., Anderson v. Callahan, CIVIL ACTION NO. 95-A-1461-S, Recommendation of the Magistrate Judge, pp. 5-6 (attached as Exhibit 1 to the February 5, 1998 Report and Recommendation in Moton v. Apfel, CA 96-0557-AH-C). The undersigned will continue to recommend a judicially-noticed clerical rate of $10.00, see infra, for mundane, clerical tasks performed by attorneys but suggests that this Court might want to consider whether it in fact must compensate attorneys for such clerical tasks.
A review of the instant EAJA petition reveals 10 entries which are excessive or unnecessary for the work described in said entries. Defendant objects to these entries on the basis of excessive time requested, or unnecessary effort. Accordingly, the Commissioner objects to excessive attorney time as follows: .15 hours each in three entries (02/08/00, 02/15/00, and 08/23/00), .05 hours each in two entries (08/07/00 and 08/10/00), and .35 hours in one entry (08/24/00). The tasks for which this time is claimed, including reading/reviewing one paragraph or page motions or orders, two-page favorable reports and recommendations regarding remands, and the Commissioner's two or three page motions for remand, have been similarly limited in this district. Such tasks are regularly handled in .05 hours or less by many attorneys handling Social Security cases in this district. Several district and magistrate judges in this district have regularly awarded .05 hours or less each for these same tasks.
Similarly, the Commissioner objects to .1 hour each for two entries as pertain to filing which is a clerical task (1/28/00 and 06/16/00). The Commissioner also objects to the 1.0 hour claimed on 06/19/00, as either unnecessary or a clerical error. This entry claims time for preparing and filing plaintiff's motion to remand for consideration of "new" evidence. However, in three previous entries (05/18/00 and twice on 06/16/00), Plaintiff claims a total of 7.7 hours for reviewing the transcript, researching, preparing, finalizing, revising, and filing Plaintiff's Proposed Report and Recommendation. Defendant is not objecting to Plaintiff's filing of both documents; however, he does aver that the 1.0 hour requested on 06/19/00 is four days later than the certificate of service to Defendant for both documents. Moreover, the 7.7 hours claimed for the earlier three entries is more than adequate and a reasonable amount of time to have researched and prepared both documents. Thus, the Commissioner respectfully requests this honorable court to disallow any award for the 06/19/00 entry.
Finally, the Commissioner objects to .35 hours of the 06/21/00 entry noted as "Receive order setting oral argument, review brief," as unnecessary since said reviewed order set the oral argument for 08/24/00, more than two months later. In the interim, Defendant filed a voluntary sentence four remand which was granted by District Judge Pittman on September 15, 2000.
The Commissioner requests the Court scrutinize counsel's application and award attorney['s] fees only for reasonable hours according to specialty and experience, and suggests Plaintiff's request for reimbursement of attorney time be reduced by 2.45 hours.
(Doc. 22, at 4-6) The Magistrate Judge is in agreement with the defendant that there are a number of instances in which the time claimed is unreasonable and that in one instance time was billed at the attorney rate for work clearly clerical in nature. However, the undersigned cannot at this time agree with the Commissioner that the clerical tasks performed not be compensated; rather, the undersigned recommends that the clerical tasks be compensated at the judicially-noticed clerical rate of $10.00 per hour.
6. Booker's entries for the receipt and review of standard court orders and notices and motions for extension of time (either .20 or .10) on the following dates are found unreasonable: (1) the February 8, 2000 entry (.20) for receipt and review of the Court's two-paragraph order granting plaintiff's motion to proceed without prepayment of fees and costs ( see Doc. 3); (2) the February 15, 2000 entry (.20) for receipt and review of this Court's standing order issued in all Social Security cases ( see Doc. 5); (3) the August 7, 2000 entry (.10) for receipt and review of the defendant's essentially one-page motion for extension of time to file his proposed report and recommendation ( see Doc. 14); and (4) the August 10, 2000 entry (.10) for receipt and review of the notice sent out by the Clerk's Office advising the parties that the motion for extension of time was granted ( see Doc. 15). It was unreasonable for Booker to bill either six minutes (.10) or twelve minutes (.20) for the receipt and review of the foregoing documents particularly since the undersigned read each of these documents in less than even one minute. See Payne v. Sullivan, 813 F. Supp. 811, 813 (N.D.Ga. 1991) (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 Booker 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 .2 hours of work performed and the disallowance of the remaining .4 hours billed on these dates.
7. The undersigned also finds unreasonable the time spent by Booker on June 21, 2000 (.40) reviewing this Court's standard one and one-quarter order setting oral argument ( see Doc. 11) and reviewing his brief ( see Doc. 9). The Magistrate Judge is in agreement with the defendant that there was no reason for counsel to review his brief at this time, some two months in advance of oral argument ( see Doc. 11 (setting oral argument on August 24, 2000)), and that the order setting oral argument could have been reviewed in less than one minute. Accordingly, only three minutes (.05) of the time billed on this date is due to be compensated at the attorney rate while the remaining time (.35) should be disallowed.
8. Booker's August 23, 2000 entry (.20) for receipt and review of the defendant's three-page motion to remand ( see Doc. 16) and his August 24, 2000 entry (.40) for receipt and review of the undersigned's essentially two-page report and recommendation ( see Doc. 17) are also found to be unreasonable. The motion to remand and the subsequent report and recommendation certainly came as no surprise to plaintiff's counsel since defendant's counsel informed him that a motion to remand would be filed and he advised defendant's counsel that he would interpose no objection to the motion. ( See Doc. 16, at 3) Moreover, taking into consideration the brevity of both the motion and the report and recommendation, the undersigned agrees with the defendant that only a combined total of six minutes (.1) on these two dates should be compensated at the attorney rate and that the remaining thirty minutes (.5) should be disallowed.
9. The undersigned also concurs with the defendant's objection to Booker's June 19, 2000 entry (1.00) for preparation and filing of plaintiff's sentence-six motion to remand ( see Doc. 10). The file makes clear that the motion to remand was filed on the same date as plaintiff's proposed report and recommendation (Doc. 9), that is, June 16, 2000 ( see Docs. 9 10 (both documents reflect a filing date of June 16, 2000)). Therefore, plaintiff's counsel simply could not have performed one hour of work on the motion to remand on June 19, 2000. The undersigned recommends that Booker's entry for June 19, 2000 be disallowed in its entirety. Disallowance of this entry will in no manner penalize Booker since the three entries immediately prior to June 19, 2000, that is, the entry for May 18, 2000 and the two entries for June 16, 2000, to which the defendant interposes no objection other than objecting to compensating Booker for filing these documents on June 16, 2000, reflect adequate and reasonable compensation (some 7.7 hours) for reviewing the transcript, researching the issues and preparing plaintiff's proposed report and recommendation and sentence-six motion to remand.
The undersigned will not reconsider disallowance of this one hour on the basis that this task was performed on June 16, 2000 rather than June 19, 2000 since the undersigned already has questions about Booker's ability to perform 5.7 hours of work on June 16, 2000 prior to the 9:16 a.m. filing time of these two documents. ( See Docs. 9 10 (both documents were stamped in as being filed at 9:16 a.m. on June 16, 2000)
The undersigned, however, will not recommend that six minutes (.1) of the time reflected on Booker's second entry for June 16, 2000 for filing his proposed report and recommendation and remand motion either be disallowed or compensated at the judicially-noticed clerical rate given the particular circumstances in this case.
10. The defendant's final claim is that Booker spent a total of twelve minutes (.2) on two dates, namely January 28, 2000 and June 16, 2000, performing clerical tasks, that is, filing various documents. As indicated above, the undersigned cannot agree with the defendant's objection to the June 16, 2000 entry. Turning to Booker's entry for January 28, 2000, the undersigned notes that this entry reflects a request that he be compensated at the attorney rate for two and one-half hours of work (2.5) for reviewing the file, preparing and filing the complaint and in forma pauperis motion, and writing a letter to his client. The undersigned finds that the time spent by Booker on this date "filing" these documents, reasonably a total of six minutes (.1) on such date, is due to be compensated at the judicially noticed clerical rate set forth infra, as opposed to total disallowance of this time as requested by the defendant.
11. There is one final entry which the undersigned finds to be unreasonable even though the defendant has interposed no objection to same and that is Booker's entry on September 15, 2000 (1.1 hours) for receipt and review of the Court's one-page order (Doc. 18) and one-page judgment (Doc. 19), review of the file, and writing a letter to Ms. Johnson. The order and judgment were reviewed by the undersigned in seconds and it is simply unreasonable to believe that Booker's review of the file and letter to Johnson would have taken more than twenty-seven minutes (.45) to prepare since Booker simply would have been informing his client of the judicial remand for further administrative proceedings. Accordingly, the Magistrate Judge recommends that Booker be compensated at the attorney rate for thirty minutes (.5) of work performed on this date and that the remaining thirty-six minutes (.6) not be compensated.
12. In his itemization of services rendered, Booker requests that he be compensated at the attorney rate for 15.9 hours of work. The undersigned recommends that 12.95 hours be compensated at the attorney rate, .1 hours be compensated at the clerical rate, and that 2.85 hours be disallowed.
13. Turning to the issue of hourly rates, the Magistrate Judge is of the opinion that this Court should judicially recognize as a reasonable hourly clerical rate the amount of $10.00, see Strong v. Chater, CA 94-0950-BH-C (recommending a clerical rate of $10.00 per hour), and reimburse Booker $1.00 for the six minutes he spent performing clerical tasks in this case.
When this Court speaks of a clerical rate, it means to reference work performed by a runner, file clerk, or secretary, not a law clerk.
14. 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).
15. 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).
16. The prevailing market rate in the Southern District of Alabama is $117.00 per hour. Woodward v. Apfel, CA 95-1009-P-M (recognizing a prevailing market rate of $117.00); Haywood v. Apfel, CA 95-0130-AH-M (same). 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.
17. In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,515.15 under the EAJA for the 12.95 hours her attorney spent performing work traditionally performed by attorneys in social security cases and further, plaintiff should be awarded $1.00 for the six minutes counsel spent performing clerical work or work which did not require the full exercise of counsel's education and judgment.
CONCLUSION
The Magistrate Judge recommends that plaintiff be awarded attorney's fees in the amount of $1,516.15 under the Equal Access to Justice Act, representing compensation for 12.95 hours of service by Booker at the market rate of $117.00 an hour and six minutes (.1) of service by Booker at the judicially-noticed clerical rate of $10.00 per hour.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
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 this 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, 1 982)( 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 case 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.