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Dailey v. Colvin

United States District Court, S.D. Alabama, Southern Division

October 2, 2014

MARILYN C. DAILEY, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

SONJA F. BIVINS, Magistrate Judge.

This matter is before the Court on Plaintiff's Application For Attorney Fees Under the Equal Access to Justice Act ("EAJA") and the response of Defendant, the Commissioner of Social Security. (Docs. 22, 23). This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(3). Upon consideration of the pertinent pleadings, it is the recommendation of the undersigned that Plaintiff's application be GRANTED and that Plaintiff be awarded a reasonable attorney's fee in the amount of $ 3, 906.71 under the EAJA for legal services rendered by her attorney in this Court.

I. Findings Of Fact

Plaintiff commenced this action on November 14, 2013. (Doc. 1). On June 20, 2014, the parties filed a Stipulated Motion for Remand pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 17). The undersigned entered a Report and Recommendation on June 23, 2014, recommending that Defendant's motion be granted and that the decision of the Commissioner be reversed and remanded. (Doc. 18). On June 25, 2014, the Report and Recommendation was adopted as the opinion of the Court, and Judgment was entered reversing and remanding this cause to the Commissioner of Social Security for further proceedings. (Docs. 20, 21).

On September 22, 2014, Plaintiff filed a Motion for Attorney's Fees under the EAJA, [1] and requested an attorney's fee award of $3, 906.71. (Doc. 22). The sum requested represents a total of 20.70 hours, at an hourly rate of $188.73 per hour, for attorney time spent representing Plaintiff in this Court. (Id. at 1). Defendant has filed a Response in which she states that she has no objection to Plaintiff's fee request or the amount of the fee request and that she consents to an award of $3, 906.71 in attorney's fees, payable to Plaintiff.[2] (Doc. 23 at 1). For the reasons set forth herein, the Court finds Plaintiff is entitled to an award of attorney's fees under the EAJA and that the hourly rate utilized to calculate the attorney's fees is due to be adjusted upward to take into account the prevailing market rate for social security cases in the Southern District of Alabama.

II. Conclusions Of Law

The U.S. 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) (quoting Hensley v. Eckerhart , 461 U.S. 424, 433 (1983)). See also Jean v. Nelson , 863 F.2d 759, 772-73 (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).

A. EAJA Hourly Rate

The EAJA (as amended)[3] 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 $125.00 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) (emphasis added). 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:

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 1033-34 (citations and footnote omitted).

The prevailing market rate for social security cases in the Southern District of Alabama has been adjusted to take into account an increase in the cost of living. Lucy v. Astrue , 2007 U.S. Dist. LEXIS 97094 (S.D. Ala. July 5, 2007). ...


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