VIRGINIA EMERSON HOPKINS, Senior United States District Judge.
Before the Court is Plaintiff Angela T. Barbee's Motion for Award of Attorney's Fees and Costs (doc. 22) (the "Motion") pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), filed on September 6, 2018. Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (the "Commissioner") filed her opposition (doc. 23) to the Motion on September 19, 2018. Plaintiff then filed her reply brief (doc. 24) in support of the Motion on September 28, 2018. Thus, the Motion is ripe for review. For the reasons stated in this opinion, the Motion is due to be
Plaintiff initiated this action on January 30, 2015, seeking a review of a final adverse decision of the Commissioner, who denied her application for disability insurance benefits. (Doc. 1 at 1-2). On June 2, 2015, the Commissioner filed an unopposed Motion for Remand (doc. 7) pursuant to sentence six of 42 U.S.C. § 405(g). The Motion for Remand sought a sentence-six remand of the social security appeal "for further administrative proceedings" because "the recording of the oral administrative hearing in this case [was] defective in that it [was] partially inaudible due to a malfunction of computer equipment." (Doc. 7 at 2). The Court granted the Motion for Remand on June 3, 2015. (Doc. 8).
After proceedings at the administrative level, Plaintiff filed a Motion To Reopen Case for Further Review (doc. 9) on September 6, 2017. The Court granted the Motion To Reopen Case for Further Review on November 1, 2017. (Doc. 10). The Commission then filed its Answer (doc. 11) on November 27, 2017. Briefing was completed on March 23, 2018. (Docs. 16, 17, 18). On July 24, 2018, the Court issued its Memorandum Opinion (doc. 19) and Final Order (doc. 20) affirming in part and reversing in part the decision of the Commissioner and remanding the case pursuant to sentence four of 42 U.S.C. § 405(g).
Finally, on September 6, 2018, Plaintiff filed the Motion (doc. 22), which was then briefed by the parties. (Docs. 23, 24).
The EAJA provides in relevant part as follows:
28 U.S.C. §§ 2412(d)(1)(A)-(d)(1)(B) (emphases added). Accordingly, the Eleventh Circuit "has recognized that three statutory conditions must be satisfied before a district court can award EAJA attorney's fees" and other expenses. Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990) (citing Taylor v. Heckler, 778 F.2d 674, 676 (11th Cir. 1985)). "First, the claimant must file an application for fees `within thirty days of final judgment in the action.'" Id. (quoting 28 U.S.C. § 2412(d)(1)(B)). "Second, assuming the fee application was timely filed, the claimant must qualify as a `prevailing party.'" Id. "[Third], if the claimant is a prevailing party who timely filed an EAJA fee application, then the claimant is entitled to receive attorney's fees unless the government can establish that its positions were `substantially justified' or that there exist `special circumstances' which countenance against the awarding of fees." Id. Additionally, if a claimant is eligible for an award of attorney's fees and other expenses, the attorney's fees and other expenses must have been incurred "in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action." 28 U.S.C. § 2412(d)(1)(A).
After determining whether a claimant meets the statutory conditions necessary to receive an award of attorney's fees under the EAJA, the district court must calculate an appropriate award of attorney's fees. The EAJA provides in relevant part as follows:
28 U.S.C. § 2412(d)(2)(A) (emphasis added). "EAJA fees are calculated under the lodestar method by examining the attorney's reasonable hours expended and [his] reasonable hourly rate." Astrue v. Ratliff, 560 U.S. 586, 602, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010). Ultimately, however, "the district court has discretion in determining the amount of a fee award," including discretion in determining the reasonable hours expended and the reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
For the reasonable hourly rate, the EAJA "establishes a two-step analysis." Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992). "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.'" Id. (second alteration in original) (quoting Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). "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. "[A] court is itself an expert on the question [of a reasonable hourly rate] and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value." Brungardt v. Commissioner, 234 F. App'x 889, 891 (11th Cir. 2007) (second alteration in original) (quoting Norman, 836 F.2d at 1303).
For the reasonable hours expended, "the fee applicant bears the burden of ... documenting the appropriate hours expended." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Then, the district court should use its discretion to "[e]xclud[e] excessive or otherwise unnecessary hours" for which an attorney "would not bill a client of means who was seriously intent on vindicating similar rights." Norman, 836 F.2d at 1301 ("In the final analysis, exclusions for excessive or unnecessary work on given tasks must be left to the discretion of the district court."); see also Hensley, 461 U.S. at 434, 103 S.Ct. 1933 ("Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc))). However, the district court "should bear in mind 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." Norman, 836 F.2d at 1306. Further, "the district court must be reasonably precise in excluding hours thought to be unreasonable or unnecessary," and "the objections and proof from fee opponents" must also be "reasonably precise." Id. at 1301. ("As the district court must be reasonably precise in excluding hours thought
Finally, after calculating the lodestar, "the court must next consider the necessity of an adjustment for results obtained." Id. at 1302. Regarding adjustments to the lodestar, the Eleventh Circuit has stated as follows:
Id. (emphasis added) (citations omitted).
The EAJA provides that, in addition to attorney's fees, the "fees and other expenses" that can be awarded include "the reasonable expenses of expert witnesses[] [and] the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case." 28 U.S.C. § 2412(d)(2)(A).
In the Motion, "Plaintiff asks for an award of attorney's fees in the amount of $16,799.37 and costs of $625.68 to be paid directly to [P]laintiff's attorney" "pursuant to the [EAJA], 28 U.S.C. § 2412(d)." (Doc. 22 at 1). The Court will address Plaintiff's request as follows. First, the Court will determine whether Plaintiff has met the statutory conditions to be eligible for an award of attorney's fees and other expenses. Second, the Court will determine whether to award Plaintiff her requested $16,799.37 in attorney's fees. Third, the Court will determine whether to award Plaintiff her requested $625.68 in costs. Fourth, the Court will determine to whom the attorney's fees and costs should be paid: Plaintiff or Plaintiff's attorney.
Plaintiff meets all statutory conditions and is thus eligible for an award of attorney's fees and other expenses. Before addressing the three statutory conditions recognized by the Eleventh Circuit, the Court will first address whether, as required by the EAJA, Plaintiff "incurred [the attorney's fees and other expenses]... in [a] civil action." 28 U.S.C. § 2412(d)(1)(A). Here, Plaintiff seeks attorney's fees and other expenses both for the time spent on her social security appeal before this Court and for the time spent at the administrative level between the sentence-six remand on June 3, 2015 (doc. 8) and the reopening of the case in this Court on November 1, 2017 (doc. 10). (See doc. 22-2 at 9-11). Plaintiff can clearly recover attorney's fees and other expenses for the time spent on her social security appeal before this Court because the EAJA states that the term "civil action" "includ[es] proceedings for judicial review of agency action." See 28 U.S.C. § 2412(d)(1)(A). Further, Plaintiff can also recover attorney's fees and other expenses for the time spent at the administrative level after the sentence-six remand. Plaintiff is allowed to do so because "[w]ith a `sentence-six remand' the district court retains jurisdiction and enters judgment after
Now, the Court will address the three statutory conditions recognized by the Eleventh Circuit. Plaintiff meets all three conditions.
The first statutory condition is that "the claimant must file an application for fees `within thirty days of final judgment in the action.'" Myers, 916 F.2d at 666 (quoting 28 U.S.C. § 2412(d)(1)(B)). A "final judgment" is defined as "a judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G). Thus, "[a]n EAJA application may be filed
A "judgment authorized by sentence four, [including a sentence-four] remand,... become[s] a `final judgment' — as required by § 2412(d) — upon expiration of the time for appeal." Id. at 297, 113 S.Ct. 2625. Because a judgment against the United States, its agencies, or its officers sued in their official capacities can be appealed "within 60 days after entry of the judgment," FED. R. APP. P. 4(a)(1)(B), the deadline for filing an EAJA application after a sentence-four remand is 90 days after the entry of judgment.
Here, the Court entered its Final Order affirming in part and reversing in part the decision of the Commissioner and remanding the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) on July 24, 2018. (Doc. 20). Thus, Plaintiff had until 90 days later, October 22, 2018, to file the Motion. Because the Motion was filed on September 6, 2018, the Motion is timely, and the first statutory condition is met.
The second statutory condition is that "the claimant must qualify as a `prevailing
Under the EAJA, a "party" is defined, inter alia, as "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B). Here, Plaintiff states in an affidavit (doc. 22-1) executed by her that "[a]t the time this action was begun[,] my net worth was less than two million dollars." (Id. at 1, ¶ 2). Thus, Plaintiff is a "party" under the EAJA.
Because Plaintiff is a "party," the Court will now address whether Plaintiff qualifies as a "prevailing party." "[A] party who wins a sentence-four remand order is a prevailing party," Schaefer, 509 U.S. at 302, 113 S.Ct. 2625. Because the Court entered a sentence-four remand order (doc. 20), which is the relief that Plaintiff sought, Plaintiff is a prevailing party. Thus, the second statutory condition is met.
The third statutory condition is that "the government [has not] establish[ed] that its positions were `substantially justified' or that there exist `special circumstances' which countenance against the awarding of fees." Myers, 916 F.2d at 666. "The government bears the burden of showing that its position was substantially justified." Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987) (citing sources).
Here, the Commissioner does not argue that its position was substantially justified. Further, the Commissioner does not argue that there are special circumstances that countenance against awarding fees, and the Court notes that there do not appear to be any such circumstances. Thus, the third statutory condition is met.
Thus, Plaintiff meets all statutory conditions and is eligible to receive an award of attorney's fees and other expenses under the EAJA. Accordingly, the Court will now determine whether the amount of attorney's fees and other expenses that Plaintiff requests is appropriate.
Although Plaintiff requests "an award of attorney's fees in the amount of $16,799.37" (doc. 22 at 1), the Court will only award Plaintiff $16,745.34 in attorney's fees.
To calculate the reasonable hourly rate, the Court will begin with the first step recognized in Meyer and "determine the market rate for `similar services [provided] by lawyers of reasonably comparable skills, experience, and reputation.'" Meyer, 958 F.2d at 1033 (alteration in original) (quoting Norman, 836 F.2d at 1299). Plaintiff's attorney, in the affidavit (doc. 22-2) executed by him, states that "[t]he fees customarily charged in this locality for similar legal services range from $125.00 per hour to $250.00 per hour according to known information." (Id. at 4, ¶ 6). The Court's "own knowledge and experience concerning reasonable and proper fees," Norman, 836 F.2d at 1303 (quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)
Because the prevailing market rate is greater than the statutory cap of $125.00, the Court must determine whether it "should adjust the hourly fee upward from $[125.00] to take into account an increase in the cost of living, or a special factor." Meyer, 958 F.2d at 1033-34. The Court determines that it should take into account the increase in the cost of living and thus adjust the statutory cap upward from $125.00. Plaintiff argues that after adjusting the statutory cap for increases in the cost of living by using the Consumer Price Index ("CPI"), the statutory cap in each relevant year is as follows: (1) 2015: $190.87 per hour; (2) 2016: $192.67 per hour; (3) 2017: $196.78 per hour; and (4) 2018: $202.31 per hour. (Doc. 22-3 at 5-7). The Court's independent calculations, however, show that the statutory cap in each relevant year is as follows: (1) 2015: $190.28; (2) 2016: $192.68; (3) 2017: $196.79;
Plaintiff requests an award of attorney's fees for a total of 84.7 hours, broken down by year as follows: (1) 2015: 1.8 hours; (2) 2016: 26.8 hours; (3) 2017: 1.5 hours; and (4) 2018: 54.6 hours. (Doc. 22 at 1). Plaintiff has provided an invoice for legal services rendered (doc. 22-2 at 9-11) that was prepared by her attorney and that lists discrete
The Commissioner, however, argues that "the requested number of hours is unreasonable." (Doc. 23 at 2). The Commissioner argues that "Plaintiff bears the burden of showing that the hours requested are reasonable," (id. at 6) (citing Hensley, 461 U.S. at 437, 103 S.Ct. 1933), and that "[i]t is incumbent upon the court to exclude those hours that are excessive, redundant, or otherwise unnecessary." (Id. at 2) (citing Norman, 836 F.2d at 1301). Accordingly, the Commissioner requests that the Court "scrutinize the numbers of hours submitted and determine whether they were `reasonably expended.'" (Id. at 3) (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933).
As requested by the Commissioner — and as required by the case law — the Court will determine whether the 84.7 hours were "reasonably expended." See Hensley, 461 U.S. at 434, 103 S.Ct. 1933. However, the Court will begin by clarifying the standard. Unlike the Commissioner argues, Plaintiff does not bear the burden of showing that the hours requested are reasonable. Instead, Hensley clear states that "the fee applicant bears the burden of ...
Here, Plaintiff has met her burden by providing the invoice for legal services that documents the number of hours expended for each task and the total number of 84.7 hours that her attorney spent on this case. (See doc. 22-2 at 9-11). Thus, the 84.7 hours cannot be reduced for failure to
First, the Court has reviewed the invoice of legal services (doc. 22-2 at 9-11) and determined that Plaintiff's attorney could conscionably bill Plaintiff for all the hours for which Plaintiff seeks attorney's fees. See Norman, 836 F.2d at 1305-06. ("The [C]ourt ... should bear in mind 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.").
Second, given the current status of the record, the Court cannot be "reasonably precise in excluding hours [claimed by the Commissioner] to be unreasonable or unnecessary." See id. at 1301. Importantly, the record does not contain — nor did the Commissioner offer — the opinion of any private attorney practicing in social security appeals and the disability area stating that the hours for which Plaintiff requests attorney's fees are excessive. See id. ("In the final analysis, exclusions for excessive or unnecessary work on given tasks must be left to the discretion of the district court. The district court will, however, no doubt be benefit[t]ed by evidence of prevailing views among practitioners in the area on such subjects.").
Additionally, the only case that Commissioner cites to support her argument that Plaintiff's requested number of hours is excessive is Huntley v. Commissioner, No. 12-613, 2013 WL 5970717 (M.D. Fla. Nov. 8, 2013). (Doc. 23 at 6). Citing Huntley, 2013 WL 5970717, at *2 n.1, the Commissioner argues that "the 57.2 hours requested by Plaintiff's attorney solely for his work before this Court is nearly double the amount other courts in this Circuit have acknowledged as reasonable." (Doc. 23 at 6) (citing Huntley, 2013 WL 5970717, at *2 n.1). In the footnote to which the Commissioner cites, the Huntley court stated that "[its] review of attorney's fees awarded in [
Beyond Huntley, the Commissioner only offers her naked assertions and unsupported reasoning that the hours spent are excessive and unreasonable. Thus, the Commissioner fails to offer "reasonably precise... proof" as to why the number of hours requested are excessive and unreasonable. See Norman, 836 F.2d at 1301.
Third, the Court rejects the Commissioner's specific arguments as to why Plaintiff's requested hours are excessive
Regarding the 34.5 hours spent on the opening brief that the Commissioner argues is excessive, the Commissioner breaks down her argument into certain tasks, and the Court will address these more specific arguments in turn. First, the Commissioner argues that the "1.5 hours" that Plaintiff's attorney spent "researching the credibility issue alone" was excessive because the credibility issue is "an issue in which an attorney with experience representing Social Security claimants would be well versed" and because Plaintiff's attorney "spent only 2.5 hours drafting the credibility argument." (Id. at 4). However, the Court does not find 1.5 hours to be excessive for this research. See Sommerville v. Astrue, 555 F.Supp.2d 1251, 1254 (D. Kan. 2008) ("[T]he fact that plaintiff's attorney has the expertise to handle a case with greater efficiency than other practitioners means little in this context, as this court will not disregard time honestly spent working on the brief simply because the attorney preparing it is experienced. As such, plaintiff's request is granted."). Further, the Commissioner does not state how long an inexperienced attorney would take to research this issue, and thus it is quite possible that Plaintiff's attorney did indeed spend fewer hours researching this issue than a less experienced attorney would have spent researching this issue. The Court also notes that a low ratio of time spent drafting an argument to time spent researching an argument does not always mean that the time spent researching that argument was excessive. After all, it makes sense that the better an attorney researches an issue and an argument, the less time its takes him to draft the argument.
Second, the Commissioner argues that the "10.3 hours" that Plaintiff's attorney spent "preparing the statement of facts" for the opening brief is excessive because "this Court's scheduling order did not require [that] the brief contain a fact section." (Doc. 23 at 4-5) (citing doc. 12). However, the Court notes that opening briefs by plaintiffs commonly contain a fact section. Indeed, Plaintiff responds to the Commissioner's argument by stating that her attorney "has always included a Statement of the Case and ... Statement of Facts in every brief filed in the appeal of a Social Security disability claim" and that, "[f]or the first time[,] the Commissioner [now] argues that the Statement of Facts is unnecessary." (Doc. 24 at 4).
Third, the Commissioner argues that the "6.9 hours" that Plaintiff's attorney spent "for transcript review ... in the district court matter" and the "7 hours" that Plaintiff's attorney spent "for transcript review at the administrative level" are "duplicative and excessive given the transcript's average length of 855 pages." The Court finds that the hours spent on transcript review at the two levels are not duplicative, especially when, as here, the transcript reviews occurred more than one year apart. (See doc. 22-2 at 10-11). After all, an attorney must be prepared at both the administrative level and the district court level. The Court also finds that 13.9 hours spent reviewing an 855-page transcript is not excessive. See Walsh v. Astrue, No. 11-6033, 2012 WL 3987289, at *2 (W.D. Ark. Aug. 22, 2012) ("Defendant objects
Fourth, the Commissioner argues that the 11.3 hours that Plaintiff's attorney "spent editing the opening brief" is excessive and that "approximately half that time, or 5.5 hours, is more than reasonable to edit a brief, particularly given the attorney's assertion that he spent nearly 30 hours meticulously writing it." (Doc. 23 at 5) (citing doc. 22-2 at 10-11). However, the Commissioner's argument is based on false premises. Plaintiff's attorney did not spend nearly 30 hours meticulously
Now, the Court will address the Commissioner's argument that the "8.9 additional hours [that Plaintiff's attorney spent] researching and drafting a 9-page reply brief" are excessive. (Doc. 23 at 5). The Court notes, however, that Plaintiff's
After determining the reasonable hourly rate and the reasonable number of hours that Plaintiff's attorney spent working on this case, the Court must calculate the lodestar. The lodestar is $16,745.34, and the Court calculated the lodestar as follows:
After calculating the lodestar, "the court must next consider the necessity of an adjustment for results obtained." Norman, 836 F.2d at 1302. The Commissioner does not argue that the lodestar should be reduced.
Plaintiff requests $625.68 in costs. (Doc. 22 at 1; doc. 22-3 at 9). Plaintiff has provided an itemized list of the costs (doc. 22-2 at 12-13), which show that the costs were incurred in obtaining medical records and pharmacy records. (See id.; doc. 22-3 at 9). The Commissioner does not challenge Plaintiff's requests for costs.
The EAJA provides in relevant part that "a court shall award ... fees and
Plaintiff has executed an affidavit (doc. 22-1) in which she purports to "assign any entitlement that [she] may have to a fee under the [EAJA] to [her] attorney, Seth B. Thompson." (Id. at 1, ¶ 3). The Commissioner responded as follows:
(Doc. 23 at 6-7). Because Plaintiff's purported assignment of her right to EAJA fees occurred before the Court awarded any fees, the purported assignment is invalid under the Anti-Assignment Act; however, the Commissioner has the discretion to "waive the Anti-Assignment Act provisions and honor the assignment." See, e.g., Meola v. Commissioner, No. 11-421, 2012 WL 4077874, at *2 (M.D. Fla. Sept. 17, 2012); see also Astrue, 560 U.S. at 597, 130 S.Ct. 2521 (noting the Commissioner's practice of directly paying claimants' attorneys "in cases where `the plaintiff does not owe a debt to the government and assigns the right to receive the fees to the attorney.'" (citing source)).
Accordingly, the $16,745.34 in attorney's fees and the $625.68 in costs shall be paid to Plaintiff, with the exception that "[i]f the United States Department of the Treasury determines that Plaintiff does not owe a debt that is subject to offset" (doc. 23 at 7) and the Commissioner then waives the provisions of the Anti-Assignment Act and accepts Plaintiff's purported assignment, the attorney's fees and costs shall be paid to Plaintiff's attorney, Seth B. Thompson.
For the reasons stated in this opinion, the Motion is
