Opinion
Civil Action No. 99-1062-BH-L
March 19, 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. 26) and defendant's response thereto (Doc. 27). Upon consideration of all pertinent materials presented, it is determined that plaintiff should receive a reasonable attorney's fee in the amount of $2,568.75 under the EAJA for 20.55 hours of legal services rendered by plaintiff's attorney in this Court at the rate of $125.00 per hour. See Boone v Apfel, 99-0965-CB-L (S.D. Ala. 2001) (Doc. 38 Report and Recommendation, March 13, 2001) and litigation expenses in the amount of $77.22 for a total of $2,645.97.
FINDINGS OF FACT
1. On August 16, 2000, this Court entered a Rule 58 judgment reversing and remanding this cause to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405 (g) for further proceedings. (Doc. 25; see also Doc. 23)
2. On November 13, 2000, plaintiff filed an application for attorney fees under the EAJA and attached thereto are Exhibit A, verified itemization of time; Exhibit B, verified itemization of expenses; Exhibit C, statement in regard to adjustment for inflation of the hourly rate specified under EAJA and attachments thereto; Exhibit C-2, copy of an order entered by United States Magistrate Judge Charles S. Coody, United States District Court, Middle District of Alabama; Exhibit D, copy of the resume of attorney Micki Beth Stiller; and Exhibit E, summary of requests. (Doc. 26). In the application, plaintiff requests attorney's fees in the amount of $3,803.80 to compensate plaintiff's counsel for 27.5 hours of legal services rendered based on an hourly rate of $138.32 and expenses in the amount of $77.22 (Doc. 26).
3. On November, 28, 2000, the Commissioner of Social Security filed a response to plaintiff's application for attorney fees (Doc. 27). The Commissioner objects to plaintiff's requested hourly rate of compensation of $138.32 as excessive. In regard to the order entered by Magistrate Judge Coody, the Commissioner asserts that the defendant in that case, did not object to the increase in the hourly rate. However, in the present case, the defendant objects to an increase and argues that plaintiff has failed to present satisfactory evidence that the rate requested is reasonable. The defendant objects to a total of 8.90 hours requested for compensation and costs as either excessive or unjustified. Also, defendant objects to an expense of 30¢ per page for photocopying arguing that .15¢ per page is justified, an expense for certified mail and Federal Express in the amount of $25.07, and mileage expenses of $7.75.
Additionally, the defendant points out that plaintiff's counsel inserted her own name into the pleadings, as though she were the plaintiff for purposes of this EAJA application and failed to have her client sign a net worth statement. The Commissioner references plaintiff's counsel's statement that she wants any approved EAJA fees paid direct to her, because it is a "great burden" to explain to the plaintiff that the money is not his or hers, but the attorney's fee (Doc. 26, page 3).
The Commissioner requests a compensation of $2,176.20 for 18.60 hours at $117.00 per hour.
CONCLUSIONS OF LAW
The Equal Access to Justice Act requires a district court to "award to a prevailing party fees and other expenses . . . incurred by that party in any civil action . . ., including proceedings for judicial review of agency action, brought by or against the United States . . ., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). The Court remanded this case pursuant to sentence four of 42 U.S.C. § 405 (g), which makes the plaintiff a prevailing party under the EAJA. Furthermore, the United States has the burden of showing that it was substantially justified in this matter. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987). The United States has declined to dispute this issue and therefore has failed to meet its burden.
"[A] party who wins a sentence-four remand order is a prevailing party." Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993).
The EAJA requires a prevailing party to file an application for attorney's fees within thirty (30) days of final judgment in the action. 28 U.S.C. § 2412 (d)(1)(B). The thirty-day clock did not begin to run in this case until this Court's reversal and remand order of August 16, 2000, became final, which occurred at the end of the sixty (60) days for appeal provided under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993), that is, October 15, 2000. The application filed in this case, bearing a date of November 13, 2000, is timely since it was filed within thirty days of October 15, 2000.
With regard to a determination of the hourly rate to apply in a given EAJA case, the express language of the Act, 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). (West 2000).
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 $[125.00] per hour, is to determine whether the court should adjust the hourly fee upward from $[125.00] to take into account an increase in the cost of living, or a special factor.Id. at 1033-1034 (citations and footnote omitted).
Therefore, the undersigned must first determine the prevailing market rate. In Boone v. Apfel, 99-0965-CB-L (S.D. Ala. 2001), the undersigned in a report and recommendation dated March 13, 2001, determined that the prevailing market rate in the Southern District of Alabama is $125.00 per hour. See id. at (Doc. 38). Consistent with this prior finding, the undersigned recommends that the prevailing market rate is $125.00.
TIME ENTRIES
The defendant objects to several entries in plaintiff's itemization of time. With regard to the reasonableness of the hours claimed by plaintiff's attorney "the fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates."Norman v. Housing Authority, 836 F.2d 1292, 1303 (11th Cir. 1988). "[T]he 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." Id. at 1306. See also 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.")
Attached to plaintiff's fee application are Exhibit A, verified itemization of time; Exhibit B, verified itemization of expenses; Exhibit C, statement in regard to adjustment of the hourly rate specified under EAJA for inflation and attachments thereto; Exhibit C-2, copy of an order entered by United States Magistrate Judge Charles S. Coody, United States District Court, Middle District of Alabama; Exhibit D, copy of the resume of attorney Micki Beth Stiller; and Exhibit B, summary of requests. (Doc. 26).
The undersigned has reviewed these documents and recommends that, under the circumstances and given the usual number of hours billed by attorneys in similar actions, the following reductions are recommended because the time entries are excessive:
a. December 9, 1999 entry of .40 hour is reduced to .10 hour for a reduction of .30 hour.
b. January 8, 2000 entry of .30 hour is reduced to .05 hour for a reduction of .25 hour.
c. April 2, 2000 entry of .50 hour is reduced to .30 hour for a reduction of .20 hour.
d. April 11, 2000 entry of .30 hour is reduced to .05 hour for a reduction of .25 hour.
e. April 13, 2000 entry of .50 hour is reduced to .10 hour for a reduction of .40 hour.
f. April 20, 2000 entry of .30 hour is reduced to .05 hour for a reduction of .25 hour.
g. May 2, 2000 (review of order) entry of .30 hour is reduced to .05 hour for a reduction of .25 hour.
h. May 31, 2000 entry of .70 hour is reduced to .35 hour for a reduction of .35 hour.
i. Four entries of .20 hours each, two on June 14, 2000, June 27, 2000 and June 28, 2000, are reduced to .05 hour each for a reduction of .60 hour.
j. August 17, 2000 entry of .50 hour is reduced to .10 hour for a reduction of .40 hour.
These reductions total 3.25 hours. The tasks identified for the above dates involve, in part, review of one paragraph or one page motions or orders, which are regularly reviewed in .05 hours or less by many attorneys handling Social Security cases and for which .05 is regularly awarded in this district and other districts.
Plaintiff also claims 3.2 hours for preparation of the EAJA petition. Upon review of the EAJA petition (Doc. 26), the undersigned recommends that the time entry should be reduced, as excessive for the preparation of a mainly routine petition, by 2.0 hours for an allowance of 1.2 hours.
Plaintiff requests 2.3 hours requested for preparation, review and proof of the summons, civil cover sheet, complaint and IFP motion (entries of November 23 and 24, 1999). In light of the routine aspect of a portion of these tasks and because the plaintiff requested an additional 2.0 hours for preparing the client and the case for appeal, the undersigned determines that the request is excessive and should be reduced by 1.3 hours for an allowance of 1.0 hour.
Plaintiff also requests .40 hours on two occasions, December 11, 1999 and April 28, 2000, for mailing of pleadings and order to client with letter of explanation and filing of same. These time entries are excessive for what is mainly a clerical task, therefore, the undersigned recommends that these entries of .40 be reduced by .20 hour each for a total reduction of .40 hour.
"[T]ime spent on clerical tasks, including the filing of documents with the Court, does not constitute compensable legal work, and therefore is not compensable under the Equal Access to Justice Act." Kooritzky v. Herman, 6 F. Supp.2d 13, 20 (D.D.C. 1998), rev'd on other grounds, Kooritzky v. Herman, 178 F.3d 1315, 336 U.S. App. D.C. 268 (D.C. Cir. Jun 18, 1999) (No. 98-5424, 98-5438), petition for cert. filed, 68 USLW 3355 (Nov. 22, 1999) (No. 99-867).
Therefore, the undersigned concludes that a claim for 20.55 hours (27.50 hours minus 6.95 equals 20.55 hours) of attorney time expended representing plaintiff in federal court is reasonable.
With regard to plaintiff's request for compensation under the EAJA for copying costs, certified mail and Federal Express fees, and mileage, as expenses of litigation totaling $77.22. (Doc. 26, Exhibit B) Litigation expenses are compensable under the EAJA provided they are "`necessary to the preparation of the [prevailing] party's case.'" Jean v. Nelson, 863 F.2d 759, 778 (11th 1988) quoting 28 U.S.C. § 2412 (d)(2)(A). "`[E]xpenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court, or which expenses the court finds to be unreasonable or unnecessary in the pending litigation, cannot be awarded under the EAJA.'" Id. quoting Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). "[A] breakdown of expenses [is] necessary in order to determine the reasonableness of the charges." Naporano Iron Metal Co. v. United States, 825 F.2d 403, 404 (Fed. Cir. 1987).
Defendant objects that the copying expenses are excessive and should be allowed at 15¢ per page or $22.20. Defendant also objects that the certified mail and Federal Express charges of $25.07 are unnecessary without further justification. Defendant asserts that plaintiff s counsel twice sought an extension of time to file plaintiff's proposed report and recommendation; thus, sending the document by express service was an unjustified expense. Further, defendant asserted that it could not ascertain to whom the certified mail was sent nor for what purpose. Also, plaintiff's counsel claims $7.75 for mileage. Defendant objects to this claim. Defendant asserts that this claim should be disallowed for lack of specification. Defendant points out that plaintiff did not travel to the court in Mobile, Alabama to file documents nor was it necessary for plaintiff to travel to the post or delivery service to mail documents.
A sufficient breakdown of expense, considering how minimal the expenses were, was provided in this case and the undersigned does not find that those expenses were unreasonable. Therefore, the undersigned recommends that all of the requested litigation expenses in the amount $77.22 of be allowed.
CONCLUSION
Upon consideration of all matters presented, it is recommended that plaintiff be awarded attorney's fees in the amount of $2,568.75 under the Equal Access to Justice Act, representing compensation for 20.55 hours of service by Micki Beth Stiller the rate of $125.00 an hour, and litigation expenses in the amount of $77.22 for a total of $2,645.97.