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Aleman v. Berryhill

United States District Court, S.D. Florida

June 21, 2018

ESTHER CRESPO ALEMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Plaintiff's Application for Attorney Fees and Costs (DE # 31, 2/5/18). On April 20, 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 # 19, 4/20/17) for final disposition. Having carefully considered the plaintiff's motion, the court file, and the applicable law, the Plaintiff's Application for Attorney Fees and Costs (DE # 31, 2/5/18) is GRANTED in part and DENIED in part in accordance with this Order.

         BACKGROUND

         On December 29, 2017, the undersigned issued an Order (DE # 29, 12/29/17) granting in part and denying in part the plaintiff's Motion for Summary Judgment (DE #21, 06/24/2017), denying the defendant's Motion for Summary Judgment (DE #22, 07/24/2017), and remanding the matter to the Administrative Law Judge (ALJ). On January 9, 2018, the undersigned issued Final Judgment (DE # 30, 1/9/18) in favor of the plaintiff and against the defendant. On February 5, 2018, the plaintiff filed the Plaintiff's Application for Attorney Fees and Costs (DE # 31, 2/5/18). On February 20, 2018, the defendant filed the Defendant's Opposition to Plaintiff's Application for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (DE # 33, 2/20/18). On February 27, 2018, the plaintiff filed the Plaintiff's Reply to Defendant's Opposition to Plaintiff's Petition for Attorney's Fees Under the EAJA (DE # 34, 2/27/18).

         ANALYSIS

         A. Entitlement to Fees

          The 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 objects to the fee request by the plaintiff because the plaintiff “requests compensation for fees for work which is not compensable under the EAJA.” Response at 1. The defendant asserts: (1) that the plaintiff should not recover fees for time spent on clerical tasks; (2) that the plaintiff should not recover fees for plaintiff's counsel to prepare his own motion for extension of time; (3) that the plaintiff should not recover for time spent on issues on which the plaintiff did not prevail: and (4) that the plaintiff should not recover fees for time spent working on a brief for someone who is not the plaintiff. Response pp. 3-8. The defendant does not dispute: (1) that the plaintiff is the prevailing party; (2) that the plaintiff's application for fees was timely filed; (3) that the position of the defendant was not substantially justified; or (4) that no circumstances make an award of fees to the plaintiff unjust. The undersigned issued Final Judgment (DE # 30, 1/9/18) in favor of the plaintiff and against the defendant, thereby making the plaintiff the prevailing party in this matter.

         B. Amount of Fees

         The 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.

         To 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 $197.92 per hour for 41.2 hours[1], 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 $8, 154.31.

         The defendant agrees that a fee award is appropriate, but objects to some of the billing entries. The defendant objects to: (1) the award of 1.90 hours requested by the plaintiff for tasks the defendant asserts are clerical in nature; (2) the 0.50 hours billed by the plaintiff for hours spent by the plaintiff's attorney preparing the plaintiff's own motion for extension of time (the plaintiff agrees to reduce these disputed tasks by 0.30 hours); (3) the 7.40 hours billed by the plaintiff that the defendant asserts is for work on issues on which the plaintiff failed to prevail; and (4) the time spent on a brief for an individual who is not the plaintiff (the plaintiff agrees to reduce these disputed tasks by 0.70 hours).

         1. ...


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