Opinion
CA 00-0530-RV-C
April 6, 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. 22) 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 $1,175.00 under the EAJA for legal services rendered by her attorney in this Court.
FINDINGS OF FACT
1. On January 30, 2001 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. 21; see also Doc. 20).
2. The application for attorney's fees under the EAJA was filed on February 9, 2001 (Doc. 22), some ten (10) days after entry of final judgment ( compare id. with Doc. 21). In the application, plaintiff requests attorney's fees in the amount of $1,887.50 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. 22).
3. The Commissioner of Social Security filed a response to plaintiff's EAJA fee application on March 14, 2001 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
"[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). justified, the defendant having conceded as much.
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 January 30, 2001 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 31, 2001. The application filed in this case, bearing a date of February 9, 2001, is obviously very 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, 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, R. Michael Booker, Esquire. The defendant has filed the following specific objections:
Defendant avers 13 entries are excessive, redundant, and/or unnecessary for the work described in said entries. Accordingly, Defendant objects to at least .15 hours each for reimbursement of attorney time requested in nine entries (6/19/00, 6/22/00, 10/02/00, 10/04/00, 11/27/00, 11/29/00, 12/21/00, 1/05/01, and 1/08/01) for tasks which many attorneys handling Social Security cases in this district only request .05 hours each, and for which several district and magistrate judges in this district have awarded .05 hours or less each. Defendant respectfully requests the court to reduce the number of hours awarded fees for these entries by at least a total of 1.35 hours.
Defendant also objects to .55 hours of the 1.1 hours requested on 2/02/01 to "Receive and review court's order; review file; letter to client". Defendant filed a voluntary sentence four remand motion in this case, which was agreed to by Plaintiff's counsel prior to Defendant filing said motion. Moreover, the court's order granting said motion is less than one page long. Thus, Defendant objects to any time more than .05 hours to review the court's order, and to any award of time for reviewing the file at this stage. Moreover, Defendant avers .5 hours is more than reasonable time in which to write a letter to Plaintiff regarding the ruling in the instant case. Thus, Defendant requests this honorable court to reduce the amount of time awarded fees in this entry by at least .55 hours.
Finally, Defendant objects to 2.0 hours of the total of 7.7 hours claimed in three entries (10/10/00, 11/02/00, and 11/02/00) to "Receive and review Answer and Transcript; review file; statutes and regulations," "Review transcript; review file; research regulations, statutes and case law for brief; prepare Report and Recommendation," and "Finalize, revise and file Report and Recommendation," respectively. Defendant avers much of the 11/02/00 entry is redundant in light of the 2.0 hours requested on 10/10/00 for the same tasks. The transcript in this case consists of only 276 pages, most, if not all, of which Plaintiff's counsel was already familiar with due to the administrative proceedings, and Plaintiff's Proposed Report and Recommendation (Report) was less than eight pages long. of the seven and one-half pages of the Report, the first page and one-half of the second page lay out the procedural history and the claims on appeal. Two other pages recite Plaintiff's medical history. The remaining four pages consist of the standard of review, Plaintiff's articulation of facts, and her conclusions of law. The total amount of time requested in the three entries is excessive given the issues raised in this case and Plaintiff's counsel's familiarity and experience in this field of law. The issues and arguments presented were not unique or of first-impression in this Circuit. Thus, the Defendant respectfully requests this court to reduce the number of hours for these entries by at least 2.0 hours. Defendant avers 5.7 hours is a reasonable amount of time to award fees for the work identified in the three identified entries.
(Doc. 24, at 2-4 (footnotes omitted)) The Magistrate Judge agrees with all of the defendant's objections to Mr. Booker's fee petition and, in addition, finds another entry on the itemization unreasonable.
6. Booker's entries for the receipt and review of standard court orders and notices and motions for extension of time, or preparation of same (.2), on the following dates are found unreasonable: (1) the June 19, 2000 entry for receipt and review of this Court's standard scheduling order issued in all social security cases (Doc. 5); (2) the June 22, 2000 entry for receipt and review of an essentially one-page order granting plaintiff's in forma pauperis motion (Doc. 3); (3) the October 2, 2000 entry for receipt and review of a two-page motion for extension of time filed by the defendant (Doc. 9); (4) the October 4, 2000 entry for receipt and review of a one-sentence notice from the Clerk's Office advising the parties that the defendant's motion for extension of time was endorsed granted (Doc. 10); (5) the November 27, 2000 entry for receipt and review of this Court's standard two-page order setting this cause for oral argument (Doc. 13); (6) the November 29, 2000 entry for preparation and filing of a one-paragraph motion to continue oral argument (Doc. 14) and review of the file; (7) the December 21, 2000 entry for receipt and review of the defendant's essentially one-page motion for extension of time to file his proposed report and recommendation (Doc. 16); (8) the January 5, 2001 entry for receipt and review of the defendant's essentially one-page motion to remand (Doc. 18); and (9) the January 8, 2001 entry for receipt and review of the undersigned's two-page motion to remand (Doc. 19). It was unreasonable for Booker to bill even six minutes (.1) for the receipt and review, or drafting and mailing, of the foregoing documents. With respect to the former category, the undersigned read each of those documents in less than even one minute, 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), and with respect to the one document drafted by Mr. Booker it is impossible to imagine how this one-paragraph document could have taken twelve minutes (.2) to draft and file. 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 .45 hours of work performed and the disallowance of the remaining 1.35 hours billed.
7. The undersigned also finds unreasonable the time spent by Booker on February 2, 2001 (1.1) for receipt and review of the Court's one-page order and one-page judgment (Docs. 20 21), reviewing the file and sending a letter to his client. The undersigned agrees with the defendant that the order and judgment could be reviewed in mere seconds and that there was no need to review the file other than to procure Willits' address. This review of the file, along with the receipt and review of the judgment and order, was easily accomplishable within three minutes (.05). The undersigned must disagree with the defendant that Booker's drafting of a letter to his client could have reasonably been accomplished in thirty minutes (.5) inasmuch as it is clear that such a letter reasonably could have been drafted and signed in twelve minutes (.2). Accordingly, the undersigned recommends that Booker be compensated at the attorney rate for fifteen minutes (.25) of work performed on this date and that the remaining time (.85) be disallowed.
8. The defendant's final objection is to the combined 7.7 hours spent by Booker on two dates (i.e., October 10, 2000 and November 2, 2000) for: (1) receipt and review of the answer and transcript, the file, statutes and regulations (October 10, 2000-2 hours); (2) review of transcript and file, research of regulations, statutes ans case law, and preparation of proposed report and recommendation (November 2, 2000-5 hours); and (3) finalizing, revising and filing proposed report and recommendation (November 2, 2000-.7 hours). There is certainly a duplication of effort reflected in the October 10, 2000 entry and the first entry for November 2, 2000. Moreover, this case involved the very simple and direct issue of whether the ALJ erred in determining that plaintiff did not have a severe impairment. It is impossible for the undersigned to believe that it took experienced counsel 7.7 hours to review the transcript, perform all research and draft a seven and one-half page proposed report and recommendation, which contains much canned and quoted material, on this simple issue. For these reasons, the undersigned agrees with the defendant that two (2) hours of the 7.7 hours reflected on Booker's itemization for October 10, 2000 and November 2, 2000 need be disallowed.
9. Although the defendant takes no further issue with Booker's itemization, the undersigned finds unreasonable the time spent by Booker on June 9, 2000 (2.5 hours) reviewing the file, preparing and filing the complaint and oath of inability to pay costs and drafting and sending a letter to Willits. The complaint is a very short, undoubtedly computer-generated, document filed by Booker in all his social security cases (see Doc. 1) as is the one-paragraph in forma pauperis motion (Doc. 2). These documents could be generated and signed within a matter of minutes. While the motion to proceed without prepayment of fees and costs, attached to the in forma pauperis motion, would have taken longer to complete, the undersigned would note that the itemization entry for May 1, 2000 reveals that he sent a letter to Willits with the oath attached (i.e., the motion to proceed without prepayment of fees) asking for her signature on the oath. In light of the foregoing, the undersigned recommends that Booker be compensated for one hour of work performed on June 9, 2000 and that the remaining 1.5 hours be disallowed.
10. In his itemization of services rendered, Booker requests that he be compensated at the attorney rate for 15.1 hours of work. The undersigned recommends that 9.4 hours be compensated at the attorney rate and that 5.7 hours be disallowed.
11. 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).
12. 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).
13. The prevailing market rate in the Southern District of Alabama has been raised to $125.00 per hour. See, e.g., Boone v. Apfel, CA 99-0965-CB-L (finding the market rate to be $125.00 an hour). 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.
14. In consideration of the foregoing, the plaintiff should be awarded an attorney's fee in the amount of $1,175.00 under the EAJA for the 9.4 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 $1,175.00 under the Equal Access to Justice Act, representing compensation for 9.4 hours of service by R. Michael Booker, Esquire, at the market rate of $125.00 an 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, 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 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.