Barbee v. Berryhill, Case No.: 5:15-CV-193-VEH

339 F.Supp.3d 1262

Angela T. BARBEE, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

Case No.: 5:15-CV-193-VEH

United States District Court, N.D. Alabama, Northeastern Division.

Signed October 19, 2018

Seth B. Thompson, The Thompson Law Firm LLC, Cullman, AL, for Plaintiff.

Edward Q. Ragland, Jack B. Hood, U.S. Attorney's Office, Birmingham, AL, Megan Cleary DePonte, Social Security Administration Office of the General Counsel Region IV, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER

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 GRANTED in part and DENIED in part.

I. PROCEDURAL HISTORY

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).

II. STANDARD

The EAJA provides in relevant part as follows:

(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party 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, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses ....

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).

A. Attorney's Fees

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:

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 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) (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 to be unreasonable or unnecessary, so should be the objections and proof from fee opponents.").

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:

If the result was excellent, then the court should compensate for all hours reasonably expended. If the result was partial or limited success, then the lodestar must be reduced to an amount that is not excessive. In doing so, the court may attempt to identify specific hours spent in unsuccessful claims or it may simply reduce the award by some proportion. A reduction is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. Where all theories derive from a common core of operative facts, the focus should be on the significance of overall results as a function of total reasonable hours. It is improper to make the reduction based on a simple ratio of successful issues to issues raised.

Id. (emphasis added) (citations omitted).

B. Other Expenses

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...