United States District Court, S.D. Florida
O'SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Plaintiff's Opposed
Motion for Attorney's Fees (EAJA) (DE # 28, 8/18/17). On
March 1, 2017, this case was referred to the undersigned by
the Honorable Cecilia Altonaga, United States District Court
Judge for the Southern District of Florida (DE # 21, 3/1/17)
for final disposition. Having carefully considered the
plaintiff's motion, the court file, and the applicable
law, the Plaintiff's Opposed Motion for Attorney's
Fees (EAJA) (DE # 28, 8/18/17) is GRANTED in part and DENIED
in part in accordance with this Order.
21, 2017, the defendant filed an unopposed Motion requesting
remand of this Social Security case. (DE # 26, 6/21/17). On
June 22, 2017, the undersigned issued an Order granting the
remand of this matter. (DE # 27, 6/22/17). On August 18,
2017, the plaintiff filed the Plaintiff's Opposed Motion
for Attorney's Fees (EAJA) (DE # 28, 8/18/17). The
defendant filed the defendant's Opposition to
Plaintiff's Motion for Attorney's Fees (DE # 31,
9/15/17) on September 15, 2017. No reply was filed.
Entitlement to Fees
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)(1)(A), authorizes an award of attorney's
fees in certain circumstances. The EAJA provides in part,
[e]xcept as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the United
States fees and other expenses, . . . incurred by that party
in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action, .
. . unless the court finds that the position of the United
States was substantially justified or that special
circumstances makes an award unjust.
Id. The defendant does not contest the
plaintiff's entitlement to attorney's fees, just the
amount of fees to be awarded to the plaintiff. Specifically,
the defendant asserts that the plaintiff's number of
hours are excessive.
Amount of Fees
EAJA provides that attorney fees “shall be based upon
prevailing market rates for the kind and quality of the
services furnished” but “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). Special factor enhancements are
reserved for “attorneys having some distinctive
knowledge or specialized skill needful for the litigation in
question-as opposed to an extraordinary level of the general
lawyerly knowledge and ability useful in all
litigation.” Pierce v. Underwood, 487 U.S.
552, 572 (1988). Examples listed by the Court included patent
law and knowledge of foreign law or language. Id.
determine the appropriate cost-of-living increase, the
$125.00 statutory rate is multiplied by the “annual
average consumer price index for all urban consumers
(‘CPI-U') for the years in which counsel's work
was performed, and then dividing the CPI-U figure for March
1996, the effective date of EAJA's $125 statutory
rate.” Thangaraja v. Gonzales, 428 F.3d 870,
877 (9th Cir. 2005). The plaintiff requests $195.40 per hour
for 37 hours, which represents the increase in the costs of
living since the effective date of the Act. The total amount
of fees sought by the plaintiff is $7, 229.80.
defendant agrees that a fee award is appropriate, but
disagrees with the amount of award requested. The defendant
disagrees with the 7.50 hours requested by the plaintiff for
work performed on this matter prior to the filing of the
District Court complaint. The defendant cites to Ward v.
Astrue, No.3:11-cv-523-J-TEM, 2012 WL 1820578, at * 2
(M.D. Fla. 2011) in support of the notion that compensation
for hours spent prior to the filing of the complaint is
reasonable when the hours are for work related to the federal
District Court case, not the underlying administrative
proceedings. The defendant also objects to a total of 4.75
hours of time for clerical and non-legal tasks, and 0.90
hours for compensation for tasks related to the
plaintiff's request for extension. Three (3) hours of the
objections included in the 4.75 hours of clerical/non-legal
time are also included in the 7.50 hours of the time spent
prior to filing the complaint. The plaintiff did not file a
reply to the response.
for paralegal services customarily billed to a client are
recoverable under the EAJA. Richlin Security Serv. v.
Chertoff, 553 U.S. 571, 590 (2008). Purely clerical or
secretarial tasks that require no legal skill or training,
such as converting pleadings to PDF, faxing and mailing,
updating lists and calendars, and filing or e-filing
documents, should not be billed at a paralegal rate
regardless of who performs them. Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, ...