Opinion
CA 98-0747-P-C
January 3, 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. 23) 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 $1,778.40 under the EAJA for legal services rendered by her attorney in this Court.
FINDINGS OF FACT
1. On August 30, 2000 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 an award of disability insurance benefits and supplemental security income. (Doc. 22; see also Doc. 21)
2. The application for attorney's fees under the EAJA was filed on November 15,2000 (Doc. 23), some seventy-seven (77) days after entry of final judgment (compare id. with Doc. 22). In the application, plaintiff requests attorney's fees in the amount of $1,872.00 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. 23)
3. The Commissioner of Social Security filed a response to plaintiff's EAJA fee application on November 29, 2000 and therein objects solely to the number of hours submitted. (See Doc. 24)
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 justified, the defendant having conceded as much.
"[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. § 24 12(d)(1)(B). The thirty-day clock did not begin to run in this case until this Court's reversal and remand order of August 30, 2000 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, October 29, 2000. The application filed in this case, bearing a date of November 15, 2000, is timely since it was filed within thirty days of October 29, 2000.
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, Byron A. Lassiter, Esquire. The defendant has filed the following specific objections:
[T]he Commissioner objects to a total of .85 hours of the amount of time recorded in twelve entries (7/13/98; 7/28/[981; 8/5/98; 1/6/00; 2/7/00; 3/21/00; 3/23/00; 3/27/00; 4/5/00; both on 4/28/00; and 5/16/00), as being excessive for the tasks performed.
The tasks identified in the above entries involved reviewing one paragraph or page motions, orders, notices, and/or judgments. 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. Therefore, the Commissioner respectfully requests each entry for .10 be reduced by .05 hours and the entry on 2/7/00 for .5 hours be reduced by .30 hours, for a total reduction of .85 hours.
(Doc. 25, at 1-2) The Magistrate Judge agrees with all of the defendant's reasonableness/excessiveness objections save for that to Lassiter's July 13, 1998 entry (.1) for receipt and review of the informa pauper is motion from Ms. Kirksey (see Doc. 2) and his March 21, 2000 entry (.1) for preparing a one-page motion for extension of time (see Doc. 15). With respect to the July 13, 1998 entry, it is clear to the undersigned that Lassiter sent Ms. Kirksey the IFP form and was simply reviewing plaintiff's completion of that form for correctness on July 13, 1998 prior to filing same with this Court. The undersigned cannot find that six minutes was an excessive amount of time to bill for completion of this task. In addition, the undersigned does not find six minutes an unreasonable amount of time to bill for preparation of a one-page motion for extension of time. Accordingly, this Court should fully compensate Lassiter for the tasks he performed on July 13, 1998 and March 21, 2000.
6. Lassiter's entries for the receipt and review of standard court orders and notices and motions for extension of time (.1) on the following dates are found unreasonable: (1) the July 28, 1998 entry for receipt and review of a two-paragraph court notice that this case was assigned to Senior Judge Pittman's docket (see Doc. 3, Attachment); (2) the August 5, 1998 entry for receipt and review of a one-sentence notice from the Clerk's Office advising the parties that the plaintiff's IFP motion was granted (Doc. 3); (3) the January 6, 2000 entry for receipt and review of a two-paragraph notice from the Clerk's Office advising the parties that the case was being assigned to Magistrate Judge Lee's docket (see Doc. 10, Attachment); (4) the March 23, 2000 entry for receipt and review of a non-existent order granting the plaintiff's motion for extension of time filed on November 22, 2000 (Doc. 15); (5) the March 27, 2000 entry for receipt and review of a two-paragraph notice from the Clerk's Office advising the parties that the case was being transferred from Judge Lee's docket to the undersigned's docket (see MJ TRANS); (6) the April 5, 2000 entry for receipt and review of yet another two-paragraph notice from the Clerk's Office advising the parties that the case was being transferred from Judge Lee's docket to the undersigned's docket (see Correspondence Side of File); (7) the April 28, 2000 entry for receipt and review of the defendant's two paragraph motion for extension of time (see Doc. 18); (8) the April 28, 2000 entry for receipt and review of a one-line notice from the Clerk's Office advising the parties that the defendant's motion for extension of time had been granted (see Doc. 19); and (9) the May 16, 2000 entry for receipt and review of the defendant's one-sentence notice to the Court that it would not be filing an objection to the undersigned's report and recommendation. It was unreasonable for Lassiter to bill even six minutes (.1) for the receipt and review of the foregoing documents particularly since the undersigned read each of these documents in a matter of mere seconds and in the case of the March 23, 2000 entry had nothing to read. 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 Lassiter be compensated at the attorney rate for three minutes (.05) of work performed on each of the foregoing dates, save for the entry on March 23, 2000 for which he should not be compensated, 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 .4 hours of work performed and the disallowance of the remaining .5 hours billed.
The Court never ruled on plaintiff's motion for extension of time. (See Docs. 15-22)
7. The undersigned also finds unreasonable the time spent by Lassiter on February 7, 2000 (.5) finalizing plaintiff's four-paragraph motion to continue (see Doc. 11) and sending the original to the Clerk's Office and a copy to the Assistant United States Attorney. The Magistrate Judge is in agreement with the defendant that this motion reasonably could have been finalized, and the other tasks performed, in twelve minutes (.2) or less. Accordingly, twelve minutes (.2) of the time billed on this date is due to be compensated at the attorney rate while the remaining time (.3) should be disallowed.
8. In his itemization of services rendered, Lassiter requests that he be compensated at the attorney rate for sixteen (16) hours of work. The undersigned recommends that 15.2 hours be compensated at the attorney rate and that .8 hours be disallowed.
9. 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).
10. 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).
11. 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.
12. In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,778.40 under the EAJA for the 15.2 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 $1,778.40 under the Equal Access to Justice Act, representing compensation for 15.2 hours of service by Byron A. Lassiter, Esquire, at the market rate of $117.00 an hour.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.