Opinion
CA 99-0328-P-C.
April 18, 2000.
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 plaintiffs application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 19) 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 $1,117.35 under the EAJA for legal services rendered by his attorney in this Court.
FINDINGS OF FACT
On January 5, 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 further proceedings. (Doc. 18; see also Doc. 17)
The application for attorney's fees under the EAJA was filed on March 29, 2000 (Doc. 19), some eighty-four (84) days after entry of final judgment ( compare id. with Doc. 18). In the application, plaintiff requests attorney's fees in the amount of $1,117.35 to compensate his attorney for the time spent representing him before this Court as of the date of the filing of the fee application. ( See Doc. 19)
The Commissioner of Social Security filed a response to plaintiffs EAJA fee application on April 12, 2000 and therein objects solely to the number of hours submitted. (See Doc. 21)
CONCLUSIONS OF LAW
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).
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 January 5, 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, March 5, 2000. The application filed in this case, bearing a date of March 29, 2000, is timely since it was filed within thirty days of March 5, 2000.
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.").
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.
With these principles in mind, the Magistrate Judge considers the reasonableness of the hours claimed by plaintiffs attorney, Byron A. Lassiter, Esquire. The defendant has filed the following specific objections:
[T]he Commissioner does object to a total of 1.0 hours of the amount of time recorded in 10 entries, as being excessive for the tasks performed, or unnecessary.
Nine of the 10 entries to which the Commissioner does object to as being excessive are the .10 (six minutes) each requested on 5/3/99, 10/14/99, 10/21/99, 11/29/99, and 1/11/00, and the .25 hours (15 minutes) each requested on 10/18/99, 10/19/99, and 12/1/99. The tasks performed on each date are either reviewing standard one sentence/paragraph/page motions and orders, or making/agreeing to requests for extensions, for which many attorneys in this district request .05 hours and for which several district and magistrate judges in this district award .05 hours. Thus, Defendant would ask for a total reduction of these nine entries of .85 hours.
Defendant's only other objection is to the .25 hours requested on 1/13/00 to send a "letter to client regarding remand". This letter logically must have been very similar to the letter sent to the client on 12/2/99, regarding the Report and Recommendation. In this case, Defendant made a motion for a voluntary remand, which Magistrate Cassady recommended should be granted in his one and 1/4 page Recommendation. Therefore, the letter to the client regarding the Recommendation should have been reasonably easy to edit to advise Plaintiff regarding the actual remand order. Therefore, Defendant requests a .15 hours reduction for said entry, making the total requested reduction 1.0 hours.
However, Defendant also notes Plaintiff did not record any time for preparation of the attorney fee application, for which most attorneys in the district request and are granted 1.0 hours. Consequently, while defendant does object to the amount of time requested in 10 entries, based upon the reasoning and duties imposed upon all parties in ACLU Defendant does not object to this court awarding Plaintiff fees for 1.0 hour to account for preparation of the instant fee application.
( Id., at 1 2-3) Therefore, while defendant objects to the time requested by plaintiffs attorney in numerous itemization entries, he has made it unnecessary for the Court to specifically consider those specific objections in this case because he has admitted that counsel should be compensated in the exact amount of the claimed reductions (1 hour) for drafting the fee application (a task for which a reimbursement claim was not made).
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).
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).
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.
In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,117.35 under the EAJA for the 9.55 hours his 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 $1,117.35 under the Equal Access to Justice Act, representing compensation for 9.55 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.