KATHERINE P. NELSON, Magistrate Judge.
On February 10, 2014, the Court adopted as its opinion (see Doc. 22) the undersigned United States Magistrate Judge's recommendation that this matter be remanded to the Commissioner (Doc. 20), and entered judgment (Doc. 23) accordingly. Now before the undersigned, again pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(3), for entry of a report and recommendation, is Plaintiff's timely application for an award of attorney's fees and litigation expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the "EAJA") (Doc. 24), filed April 22, 2014, and the Commissioner's objection to the application (Doc. 26), filed May 6, 2014.
Upon consideration of all pertinent materials contained in this file, it is
On February 10, 2014, 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. 23; see also Doc. 22 order adopting report and recommendation of the Magistrate Judge (Doc. 20).) In the application for an award of attorney's fees and litigation expenses under the EAJA (Doc. 24), filed April 22, 2014, Plaintiff Tammy Hollinger requests attorney's fees in the amount of $4,671.75, to compensate her attorney for the time (25 hours) spent representing her before this Court as of the date of the filing of the fee application, and litigation expenses in the amount of $138.96 (see generally id.). In her objection to Hollinger's application, the Commissioner does not contest the reasonableness of the requested attorney's fees and expenses; instead, she contends that no attorney's fees should be awarded in this matter because the Commissioner's position in this litigation was substantially justified. (See generally Doc. 23.)
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
While "`[s]ubstantially justified' is one of the myriad phrases in the law that has no precise or fixed definition[, t]he Supreme Court has said that it means `justified in substance or in the main.'" Grieves v. Astrue, 600 F.Supp.2d 995, 999 (N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. ("A position that is `substantially justified' must have a `reasonable basis both in law and in fact.'" (quoting Pierce, 487 U.S. at 565)); cf. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (a position is substantially justified if a "reasonable person could believe the position was correct").
Grieves, 600 F. Supp. 2d at 999 (internal citations and quotation marks omitted and other modifications to original).
Id. at 1000 (internal citations modified and some omitted); but see Cockerham v. Secretary of Health & Human Servs., CIV.A. No. 87-1276, 1990 WL 11355, at *3 (E.D. La. Jan. 31, 1990) ("[T]he corresponding definition of `substantially justified' used in the EAJA means `to be justified in substance or in the main . . . the action must be justified to a degree that could satisfy a reasonable person, and must have a reasonable basis in both law and fact.' Clearly, definitions of the terms `substantial evidence' and `substantially justified' are analogous; a reasonable mind must conclude that when the [Commissioner]'s position was not based upon substantial evidence, it cannot be found substantially justified." (quoting Pierce, 487 U.S. at 565)); Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624, at *5 (N.D. Ill. Mar. 21, 2003) ("When a court finds [] a lack of connection between the evidence in the record and an ALJ's conclusion, it is appropriate to find the Commissioner's position not substantially justified." (citations omitted)).
Here, the Court found that the Commissioner's decision denying Hollinger benefits should be remanded because the pain standard as applied by the ALJ was flawed since the Court could not determine whether the ALJ's credibility finding—a necessary component of the applicable pain analysis—was supported by substantial evidence. See Hollinger v. Colvin, Civil Action No. 13-00127-CG-N, 2014 WL 518025, at *3-6 (S.D. Ala. Feb. 10, 2014); compare id. at *3 ("once the pain standard is satisfied, the issue becomes one of credibility"), with id. at *4 ("A clearly articulated credibility determination [must be] supported by substantial evidence [to] not be disturbed.") (citations and internal quotation marks omitted). As this Court has noted on at least two occasions relatively recently,
Thomas v. Colvin, No. CA 12-00227-N, 2013 WL 3759826, at *3 (S.D. Ala. July 16, 2013); see also Bonner v. Colvin, CA 12-00603-C, Doc. 27 at 3-6 (entered Feb. 4, 2014) ("[T]he undersigned simply notes that the ALJ's failure to apply the correct legal standard in assessing the claimant's credibility was not substantially justified . . . [and concludes by] find[ing] no reasonable basis in law for the ALJ's failure to follow the law in the Eleventh Circuit regarding assessing a claimant's credibility, or for the Commissioner to take the position in this Court that the ALJ's credibility analysis was sufficient." (citations omitted)); cf. Koschnitzke v. Barnhart, 293 F.Supp.2d 943, 952 (E.D. Wis. 2003) ("[T]he Commissioner's position on the issue of plaintiff's credibility was not substantially justified. The ALJ committed an error of law by failing to follow SSR-96-7p, and his observations were not supported by substantial evidence." (collecting cases)) (cited in Bonner). Thus, the undersigned explicitly rejects the Commissioner's characterization of the ALJ's flawed pain/credibility analysis here as simply a "technical error" and one that the Commissioner was substantially justified in defending.
Further, because the Commissioner makes no argument that Hollinger is not a prevailing party under the EAJA,
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 the Court's February 10, 2014 Order/Judgment became final; that occurred at the end of the sixty (60) days for appeal provided under Rule 4(a)(1)(B)(iii) of the Federal Rules of Appellate Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302 (1993), which was April 11, 2014. Therefore, the application filed in this case, bearing a date of April 22, 2014, is timely.
Like 42 U.S.C. § 1988, the EAJA is a fee-shifting statute. And 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 (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 (1990).
Hensley, 461 U.S. at 433-34 (citations omitted); see also id. at 437 ("[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates."); ACLU of Ga. 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 Auth. of City of Montgomery, 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, 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. Because the Commissioner interposes no objection to the fee petition, the Court finds that Hollinger's counsel reasonably spent
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:
28 U.S.C. § 2412(d)(2)(A) (Cum. 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.
Id. at 1033-1034 (citations and footnote omitted).
For years, the prevailing market rate in the Southern District of Alabama has been $125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-RV-C; Boggs v. Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L. This Court has adjusted that rate to account for the increase in the cost of living. Lucy v. Barnhart, CA 06-0147-C, Doc. 32. More specifically, the Court has adopted the following formula to be used in calculating all future awards of attorney's fees under the EAJA: "`($125/hour) × (CPI-U Annual Average "All Items Index," South Urban, for month and year of temporal midpoint) / 152.4, where 152.4 equals the CPI-U of March 1996, the month and year in which the $125 cap was enacted.'" (Id. at 11 (quoting Doc. 31 at 2).)
The temporal midpoint in this case was in August 2013, the complaint having been prepared and filed on March 25, 2013 (see Doc. 1), and the Court having entered its order and judgment on February 10, 2014 (see Docs. 22, 23). The Court takes notice that the CPI-U for August 2013 was 227.837. See, e.g., Barker v. Astrue, Civil No. 10-2057, 2011 WL 6033016, at *2 (W.D. Ark. Dec. 5, 2011) (taking judicial notice of the CPI-U South where the plaintiff's counsel failed to submit evidence of a CPI in support of his requested hourly rate) (citing FED. R. EVID. 201). Plugging the relevant numbers into the foregoing formula renders the following equation: ($125 × 227.837)/152.4. Completion of this equation renders an hourly rate of
Hollinger also requests litigation expenses totaling
The undersigned therefore
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
