Opinion
Civil Action 00-0948-RV-M
November 27, 2001
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. 19) and Defendant's Response to Plaintiff's Application for Attorney Fees Under the EAJA (Doc. 20), which have been referred for report and recommendation. After consideration of the pertinent pleadings, it is recommended that the Application be granted as follows and that Plaintiff be awarded an EAJA attorney's fee in the amount of $2,212.50.
Plaintiff filed this action on October 25, 2000 (Doc. 1). On August 9, 2001, the Court entered judgment reversing the decision of the Commissioner of Social Security and remanding this action for further proceedings (Doc. 18). On November 6, 2001, Gilbert B. Laden, counsel for Plaintiff, filed an Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, in which Plaintiff requests a fee of $2,212.50, computed at an hourly rate of $125.00 for 17.7 hours spent in this Court (Doc. 19). Defendant has no objection to the fee application (Doc. 20). The Court, after examination of Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act and supporting documentation, and after consideration of the reasonableness of the hours claimed, finds that Plaintiff's time expended in prosecuting this action for a total of 17.7 hours is reasonable.
The EAJA requires a 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). The EAJA further requires that a prevailing party file an application for attorney's fees within thirty days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). The court's judgment is final sixty days after it is entered, which is the time in which an appeal may be taken pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure. See Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 2632 (1993).
Defendant concedes that Plaintiff became the prevailing party when the Court reversed and remanded this action, Schaefer, 113 S.Ct. at 2631; that the fee application was timely filed; and that his position was not substantially justified (Doc. 20).
With respect to a determination of the hourly rate to apply in a given EAJA case, the express language of the Act 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 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) (Supp. 1997).
In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 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 $75 per hour, is to determine whether the court should adjust the hourly fee upward . . . to take into account an increase in the cost of living, or a special factor.Id. at 1033-34 (citations omitted footnote omitted). The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence at a minimum is more than the affidavit of the attorney performing the work. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547 n. 11 (1984). Where the fees or time claimed seem expanded or there is lack of documentation or testimony in support, the court may make an award on its own experience. Norman v. City of Montgomery, 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.
Subsequent to Meyer, the cap was raised from $75.00 per hour to $125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).
The prevailing market rate in the Southern District of Alabama has been raised to $125.00 per hour. See Smith v. Massanari, Civil Action 00-0812-P-M (October 25, 2001); Boone v. Apfel, Civil Action 99-0965-CB-L (August 30, 2001); Lee v. Massanari, Civil Action 00-0518-RV-S (June 29, 2001); Willits v. Massanari, Civil Action 00-0530-RV-C (May 4, 2001); andSauare v. Halter, Civil Action 00-0516-BH-L (April 12, 2001). 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. Multiplying the 17.7 hours by the Southern District of Alabama inflation-adjusted prevailing market rate of $125.00 results in a fee of $2,212.50.
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 $2,212.50.