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Jurisdiction: Alabama Southern District Court
Decision Date: 11/5/2015

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Holcombe v. Colvin Holcombe v. Colvin (S.D. Ala., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DOROTHY M. HOLCOMBE, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 15-0028-KD-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 5, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DOROTHY M. HOLCOMBE, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 15-0028-KD-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 5, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        REPORT AND RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In this action under 28 U.S.C. § 2412, Plaintiff seeks Attorney Fees Under the Equal Access to Justice Act (hereinafter EAJA) (Doc. 17); Defendant has filed a Response (Doc. 18). The action was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Ci v. P. 72, and S. D. Ala. Gen. L. R. 72. After considering the pertinent pleadings, it is recommended that Plaintiff's Motion be granted and that Plaintiff be awarded an EAJA attorney's fee in the amount of $2, 980. 04.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff filed this action on January 22, 2015 (Doc. 1). On July 23, 2015, the undersigned Judge entered a Memorandum Opinion and Order, reversing the decision of the Commissioner,

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        and remanding this action for further proceedings (Doc. 15). Judgment was entered in favor of Plaintiff and against Defendant (Doc. 16).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On October 12, 2015, Byron A. Lassiter, Plaintiff's Attorney, filed an EAJA Fee Application requesting a fee of $2, 980. 04, computed at an hourly rate of $188. 61 for 15. 8 hours spent in this Court (Doc. 17). Defendant, in her Response filed on October 26, 2015, stated that she had no objection to the requested fee, noting that payment should be made to Plaintiff rather than to her Attorney (Doc. 18).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The EAJA requires a court to

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        28 U.S.C. § 2412(d)(1)(A). 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure. See Shalala v. Schaefer 509 U.S. 292 (1993).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As set out above, three statutory conditions must be satisfied before EAJA fees may be awarded. See Myers v. Sullivan 916 F.2d 659 666 (11 Cir. 1990). First, the claimant must file a fee application within the thirty-day period; also, the claimant must be a prevailing party. Finally, the Government's position must not be substantially justified.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Defendant apparently concedes all three EAJA requirements (see Doc. 18). The Court finds that they have been met.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court will now discuss the fee to be awarded. EAJA 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 1586 (11 Cir. 1985 (EAJA) (quoting Hensley v. Eckerhartt 461 U.S. 424, 433 (1983) (§ 1988)). In describing this lodestar method of calculation, the United States Supreme Court stated:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Hensley 461 U.S. at 434 (citations omitted). Counsel must use professional judgment in billing under EAJA. A lawyer should only be compensated for hours spent on activities for which he would bill a client of means who was seriously intent on vindicating similar rights. Norman v. Housing Authority 836 F.2d 1292 1301 (11 Cir. 1988).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After examining Plaintiff's Attorneys' Application, and supporting documentation, and considering the reasonableness of the hours claimed, the Court finds that the 15. 8 hours expended in prosecuting this action is reasonable.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In determining the hourly rate to apply in a given EAJA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        case, express statutory language provides as follows:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In Meyer v. Sullivan 958 F.2d 1029 (11 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:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Meyer 958 F.2d at 1033-34 (citations and footnote omitted).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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 (11 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, 895 n. 11 (1984). Where the fees or time claimed seem expanded or there is lack of documentation or testimony in support thereof, the court may make an award on its own experience. Norman v. City of Montgomery 836 F.2d 1292 1303 (11 Cir. 1988). Where the documentation is inadequate, the court is not relieved of its obligation to award a reasonable fee, but, traditionally, it has had the power to make an award with no need of further pleadings or an evidentiary hearing. Id.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Beginning in 2001, the prevailing market rate in the Southern District of Alabama was $125. 00 per hour. See e. g Smith v. Massanari Civil Action 00-0812-P-M (S. D. Ala. October 25, 2001); and Square v. Halter Civil Action 00-0516-BH-L (S. D. Ala. April 12, 2001). However, in 2007, U.S. Magistrate Judge Cassady fashioned a formula to adjust the prevailing market hourly rate to account for the ever-increasing cost-of-living.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Lucy v. Barnhart Civil Action 06-0147-C (S. D. Ala. July 5, 2007 (Doc. 32)). As set out in Lucy the formula to be used in calculating all future awards of attorney's fees under the EAJA is as follows: "'($125/hour) x (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. '" (Lucy Doc. 32, at p. 11) (quoting Lucy Doc. 31, at p. 2). The undersigned also adopts this formula in EAJA fee petition actions for use in arriving at the appropriate hourly rate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The complaint was filed on January 22, 2015 (Doc. 1) and the Court entered its Memorandum Opinion and Order and Judgment on September 23, 2015 (Docs. 15-16), so the temporal midpoint in this action was April 23, 2015. The CPI-U for April 2015 was 229. 957. Plugging the relevant numbers into the foregoing formula renders the following equation: $125. 00 x 229. 957/152. 4, the computation of which renders an hourly rate of $188. 61. This hourly rate for 15. 8 hours equals $2, 980. 04.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court notes that, in the application for Attorney's

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fees, counsel for Plaintiff requests that any award of attorney's fees be paid to Plaintiff's attorney rather than to Plaintiff (Doc. 17). The Government argues that payment should only go to the Plaintiff (Doc. 18).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As noted earlier, EAJA allows a Court to make an "award to a prevailing party. " 28 U.S.C. § 2412(d)(1)(A). In Panola Land Buying Ass'n v. Clark 844 F.2d 1506 1509 (11 Cir. 1988), the Eleventh Circuit Court of Appeals stated that "it is readily apparent that the party eligible to recover attorneys' fees under the EAJA as part of its litigation expenses is the prevailing party. " See also Reeves v. Astrue 526 F. 3d 732, 738 (11 Cir. ), cert. denied 555 U.S. 1072 (2008) ("We conclude the EAJA means what it says: attorney's fees are awarded to the 'prevailing party, ' not to the prevailing party's attorney"). The United States Supreme Court, in the unanimous decision of Astrue v. Ratliff 560 U.S. 586 589 (2010), held "that a § 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States, " removing any doubt as to whom the award should be paid.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In this action, Holcombe has stated that the Government can

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 9

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        pay any fees awarded to her to Attorney Lassiter (Doc. 17, Exhibit 2). However, under the reasoning of Reeves and Ratliff the Court finds that the award should be paid to Plaintiff Dorothy M. Holcombe and not to her Attorney.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In conclusion, it is recommended that Plaintiff's Attorney's Application be granted (Doc. 17) as set out above and that Plaintiff be AWARDED an EAJA Attorney's fee in the amount of $2, 980. 04.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        NOTICE OF RIGHT TO FILE OBJECTIONS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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. The parties should note that under Eleventh Circuit Rule 3-1, "a party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 10

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice. " 11th Cir. R. 3-1. 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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                DONE this 5 day of November, 2015.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                s/BERT W. MILLING, JR.         UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 "The appropriate endpoint for computing the cost of living adjustment is the temporal midpoint of the period during which the compensable services were rendered; . . . the temporal midpoint is calculated by computing the number of days from the date the claim was prepared until the date of the Magistrate or District Judge's Order and Judgment. " Lucy v. Barnhart. Civil Action 06-0147-C (S. D. Ala. Doc. 31, at p. 3).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 "The appropriate endpoint for computing the cost of living adjustment is the temporal midpoint of the period during which the compensable services were rendered; . . . the temporal midpoint is calculated by computing the number of days from the date the claim was prepared until the date of the Magistrate or District Judge's Order and Judgment. " Lucy v. Barnhart. Civil Action 06-0147-C (S. D. Ala. Doc. 31, at p. 3).

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