United States District Court, M.D. Florida, Fort Myers Division
MIRANDO United States Magistrate Judge.
matter comes before the Court upon review of Plaintiff's
Petition for EAJA Fees pursuant to 28 U.S.C. 2312(d) (Doc.
36). Plaintiff moves pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d), for an
award of attorney's fees in the amount of $9, 478.88.
Plaintiff attaches an itemization of time confirming: a total
of 3.20 hours worked in 2015 and 27.70 hours worked in 2016
on this matter at a rate of $191.25 per hour by
Plaintiff's counsel Carol Avard; a total of 15.20 hours
worked on this matter and 2.30 hours worked on the present
motion at a rate of $191.25 per hour by Plaintiff's
counsel Mark Zakhvatayev; and a total of 0.20 hours worked at
a rate of $60.00 per hour by a paralegal. Doc. 36 at
17-19. The Commissioner of the Social Security
Administration (the “Commissioner”) opposes
Plaintiff's motion on the sole ground that the requested
attorney hours are not reasonable. Doc. 37 at 1. After
seeking and obtaining leave of Court, Plaintiff filed a reply
brief to the Commissioner's response. Docs. 38, 39, 40.
Plaintiff also seeks reimbursement for 1.10 hours expended on
the reply brief at a rate of $191.25 per hour. Doc. 40 at 3.
the EAJA, a claimant is eligible for an attorney fee award
where: (1) the claimant is a prevailing party in a non-tort
suit involving the United States; (2) the Government's
position was not substantially justified; (3) the claimant
filed a timely application for attorney's fees; (4) the
claimant had a net worth of less than $2 million at the time
the complaint was filed; and (5) there are no special
circumstances which would make the award of fees unjust. 28
U.S.C. § 2412(d). The Commissioner does not contest the
issues of prevailing party status, timeliness, the requested
hourly rate, or substantial justification. Doc. 37 at 2.
April 22, 2016, the Court granted the Commissioner's
Unopposed Motion for Remand under Sentence Four of 42 U.S.C.
§ 405(g) (Doc. 33) and reversed and remanded this case
to the Commissioner for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). Doc. 34. Judgment
was entered on April 25, 2016. Doc. 35. Plaintiff asserts
that the Commissioner's position in the underlying action
was not substantially justified and that her net worth at the
time this proceeding was filed was less than two million
dollars. Doc. 36 at 2. As noted, the Commissioner does not
contest that Plaintiff meets the requirements under the EAJA,
and the Court finds that all conditions have been met. Doc.
37 at 2.
fees are “based upon prevailing market rates for the
kind and quality of services furnished, ” not to exceed
$125.00 per hour unless the Court determines that an increase
in the cost of living or a special factor justifies a higher
fee. 28 U.S.C. § 2412(d)(2)(A). Determination of the
appropriate hourly rate is thus a two-step process. The Court
first determines the prevailing market rate; then, if the
prevailing rate exceeds $125.00, the Court determines whether
to adjust the hourly rate. Meyer v. Sullivan, 958
F.2d 1029, 1033-34 (11th Cir. 1992). The prevailing market
rates must be determined according to rates customarily
charged for similarly complex litigation, and are not limited
to rates specifically for social security cases. Watford
v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985).
counsel is requesting an adjusted hourly rate that is
authorized by applying the cost-of-living adjustment to the
$125.00 ceiling for work performed in 2015 and 2016. Doc. 36
at 3. Because the Commissioner does not object to the
adjusted hourly rate sought and it is within the rates
permitted by the EAJA, the Court finds that $191.25 per hour
in 2015 and 2016 is an appropriate and reasonable hourly
rate. Doc. 37 at 2.
counsel also has submitted timesheets that include an
itemization of legal services performed. Doc. 36 at 17-19.
Avard and Zakhvatayev spent a total of 46.10 hours on
Plaintiff's case in 2015 and 2016, and Zakhvatayev
expended 2.30 hours on the present motion in 2016.
Id. In addition, Plaintiff alleges that a paralegal
spent 0.20 hours on this motion. Id. at 19. Thus,
Plaintiff requests a total of $8, 816.63 for work performed
on this matter in 2015 and 2016 and $451.88 for work
performed on this motion in 2016. Id. at 17-19.
Commissioner objects to the requested number of hours as
excessive. Doc. 37 at 2. The Commissioner argues that the
Court should reduce the hours of Plaintiff's attorney
work by 16.10 hours because Plaintiff does not meet her
burden to show that 46.10 hours of attorney work are
reasonable. Id. at 3. For instance, the Commissioner
points out that although Zakhvatayev spent 15.20 hours to
write the statement of facts, Avard expended additional 26.40
hours drafting the remainder of the brief. Id. at 4.
The Commissioner argues that it was unreasonable for
Plaintiff's counsel to expend 41.60 hours drafting the
single memorandum of law because the issues Plaintiff raised
were not novel or complex. Id.
responds that Zakhvatayev spent 15.20 hours writing the
12-page statement of facts because it was based on his review
of a 2, 000-page record. Doc. 40 at 1. Plaintiff further
asserts that Avard reasonably spent 26.40 hours writing the
memorandum because she drafted an approximately 20-page
argument, which required legal research and analysis.
Id. at 2. Plaintiff claims that given the large size
of the record in this case, Plaintiff's counsel
reasonably spent over 40 hours to write the memorandum of
law. Id. Plaintiff also requests attorney's fees
for 1.10 hours spent on her reply brief. Id. at 3.
Court finds that Plaintiff's counsel did not exercise
proper billing judgment and included excessive hours in her
fee petition. In deciding whether fees are reasonable under
28 U.S.C. § 2412, courts apply the “standard of
‘billing judgment' in private practice.”
Spruil v. Bowen, 691 F.Supp. 302, 307 (M.D. Fla.
1988). Attorneys exercise billing judgment by excluding from
fee applications “excessive, redundant, or otherwise
unnecessary hours.” Am. Civil Liberties Union of
Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)
(alteration in original) (internal quotation marks and
citation omitted). Hours that “would be unreasonable to
bill to a client and therefore to one's adversary
irrespective of the ski l, reputation or
experience of counsel” are excessive, redundant,
or otherwise unnecessary. Id. (citation omitted)
(emphasis in original). If attorneys 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.'” Id. The Eleventh Circuit
explained that courts should not be generous with the money
of others. Id.
Avard seeks reimbursement for clerical tasks performed by her
paralegal. Doc. 36 at 18. Plaintiff states that the paralegal
spent 0.20 hours on July 29, 2015 and another 0.20 hours on
February 18, 2016 in filing Plaintiff's memorandum on
CM/ECF. Id. Avard includes these hours as part of
her attorney hours worked at a rate of $191.25. Id.
The Court finds that the entry of the paralegal's 0.20
hours spent on filing Plaintiff's memorandum on July 29,
2015 is an error because Plaintiff did not file any
memorandum of law on this date. Id.; see Powell
v. Colvin, No. 8:12-cv-2078-T-33TBM, 2013 WL 4781083, at
*2-3 (M.D. Fla. Sept. 6, 2013) (reducing compensable hours
because the attorney sought compensation for “preparing
tables, ” which did not exist in the attorney's
brief). Regardless, filing a memorandum is a clerical task
that is not compensable as attorney's fees. Mobley v.
Apfel, 104 F.Supp.2d 1357, 1360 (M.D. Fla. 2000);
see also Jipson v. Comm'r of Soc. Sec.,
No. 2:13-cv-450-FtM-38DNF, 2014 WL 2951824, at *3 (M.D. Fla.
July 1, 2014) (holding that Avard was not entitled to
paralegal fees for “filing a Memorandum in Opposition
by Cm/ecf”). As a result, the Court will exclude the
paralegal's 0.40 hours of filing Plaintiff's
memorandum on CM/ECF. Doc. 36 at 18.
also seeks to recover Avard's 0.20 hours of reviewing two
orders on June 30, 2015. Id. at 17. The docket
reveals that although three orders (Docs. 6, 7, 8) were
entered on June 30, 2015, Avard does not specify which two
orders she reviewed. Id. Furthermore, Avard, as the
attorney who has filed numerous Social Security cases in this
District, should be familiar with these orders (Docs. 7, 8)
because they are Standing Orders entered in all Social
Security cases pending with this Division and before the
undersigned. See Espino v. Comm'r of Soc. Sec.
No. 6:14-cv-1185-Orl-TBS, 2015 WL 6705453, at *2 (M.D. Fla.
Nov. 2, 2015) (holding that an attorney could not be
compensated for time to review the Local Rules because he is
expected to be familiar with the rules). Similarly, on July
9, 2015, Avard spent 0.10 hours reviewing the Related Case
Order and Track One Notice (Doc. 9) that also is entered in
all Social Security cases. Doc. 9; see Id. As a
result, the Court will exclude Avard's 0.20 hours of
reviewing two orders on June 30, 2015 and 0.10 hours of
reviewing the Related Case Order and Track One Notice (Doc.
9) on July 9, 2015. Doc. 36 at 17.
addition, the Court finds that Avard spent an excessive
number of hours on drafting Plaintiff's memorandum. Avard
and Zakhvatayev are experienced attorneys in Social Security
appeals. The court in Bowman v. Commissioner of Social
Security explicitly stated that Avard is one of six
board certified Social Security disability attorneys in the
state of Florida and has practiced Social Security disability
law since 1981. No. 6:13-cv-614-Orl-31TBS, 2014 WL 5472453,
at *2 (M.D. Fla. Oct. 22, 2014). Avard also alleges that
since 1990, 80 percent of her practice involves Social
Security matters. Doc. 36 at 7. Similarly, Zakhvatayev has
managed several hundred Social Security disability hearings
and prepared hundreds of Appeals Council briefs.
Bowman, 2014 WL 5472453, at *2.
Avard has been representing Plaintiff at least since August
1, 2011. Doc. 18-8 at 97. Prior to filing this case, on March
12, 2012, Avard appealed the Commissioner's decision to
this Court. Gavernick v. Comm'r of Soc. Sec.,
No. 2:12-cv-145-JES-SPC (M.D. Fla. Mar. 12, 2012). Senior
United States District Judge John E. Steele presided over
Plaintiff's prior appeal. Id. Judge Steele
remanded the Commissioner's decision to the Commissioner
and entered Judgment in favor of Plaintiff because the
Commissioner filed an unopposed motion to remand.
Gavernick v. Comm'r of Soc. Sec., No.
2:12-cv-145-JES-SPC (M.D. Fla. June ...