USHER v. APFEL

WILBUR D. OWENS, JR., United States District Judge.

Before the Court is Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Justice Act ("EAJA"), 28 U.S.C. § 2412(d). [Tab 19]. On May 15, 2000, this court found that Plaintiff was the prevailing party in this case against the Social Security Administration. As allowed by the EAJA, Plaintiff requested attorney's fees and Defendant objected only as to the hourly rate requested by Plaintiff. Having carefully considered the relevant statute and case law, the court issues the following order granting Plaintiff's request for attorney's fees.

In Meyer v. Sullivan, the Eleventh Circuit established the test for this Circuit to determine the appropriate amount of attorney fees to be awarded under the EAJA. Meyer v. Sullivan, 958 F.2d 1029 (11^th 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. at 1033 (citation omitted). "The second step, which is needed only if the market rate is greater than $75 per hour, is to determine whether the court should adjust the hourly fee upward from $75 to take into account an increase in the cost of living, or a special factor." Id. "Congress, by specifying the market rate for fees as a factor — a `starting point' — in determining fees under the EAJA, intended to ensure that adequate representation would be available to parties suing the government." Id. at 1034. In 1996, Congress enacted an amendment to 28 U.S.C. § 2412(d) and raised the $75 figure to $125.

In this case, the Government's argument against Plaintiff's fee calculation is strikingly similar to the one made in Haywood v. Apfel, No. 95-0130, 1998 U.S. Dist. LEXIS 22484, (S.D. Ala. Apr. 3, 1998). InHaywood, the government argued that "this district has historically awarded $100 per hour and therefore the prevailing market rate is $100 per hour." Id. at *20. The court disagreed "with the Government's logic."Id. "If the Court was to follow the Government's reasoning, then the market rate under the EAJA would never be increased." Id. "The last award given by the Court, $100 per hour, would always be considered the prevailing market rate." Id. at *20, 21. "The next time the Court addressed the issue its previous $100 per hour award would be used as the current market rate." Id. "According to the statute, when attorney's fees are justified, this Court is required to award them at the prevailing market rate." Id.

All the cases interpreting this subject hold that this is the correct analysis for determining attorney's fees under the EAJA. In this case, Plaintiff satisfied the first prong of the test by providing: (1) the Consumer Price Index ("CPI") cost-of-living statistics; (2) affidavits providing a reasonable basis for determining the proper rate applicable to representation in social security cases; and (3) Plaintiff's attorney's own affidavit stating what he charges in non-contingent social security cases. Plaintiff also provided a detailed billing report setting out exactly what amount of time was spent by the attorney on each task pertaining to this case.

Contrary to the Government's arguments, Plaintiff has firmly established the prevailing market rate in this type of case. Plaintiff has gone above and beyond what is required by the caselaw to establish the applicable rate for his fees. The affidavits from other attorneys set out the type of work with which they are familiar and compare that to work done in social security cases such as this one. There is ample evidence in the record to determine both the local market rate and the national market rate for legal services in these types of cases.

As the Government has failed to rebut Plaintiff's calculation and as Plaintiff has correctly applied the relevant law in her computation of fees, the Court hereby orders Defendant to pay Plaintiff the amount of $4,735.79. This amount was determined by applying the cost of living increases as set forth in the United States Bureau of Labor Statistics Consumer Price Index ("CPI-U"). Although there are several methods of computing the prevailing market rate through this index that end up with the same figure, the simplest is the following formula, taken fromHaywood and is adjusted to reflect current rates: ($125 per hour x 172.3/155.7) where 155.7 equals the CPI-U of March 1996; where 172.3, equals the annual average "All Items Index" for 2000; and where $125 reflects the current statutory amount for fees. This formula produces a current hourly rate of $138.33, which is $125 adjusted upward to cost-of-living increases as reported in the CPI-U and required by statute and relevant caselaw.

SO ORDERED, this 30th day of October, 2000.