United States District Court, M.D. Florida, Jacksonville Division
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE
in the case, the Court reversed the Commissioner of Social
Security's denial of Khalid Bey's application for
disability benefits and, under sentence four of 42 U.S.C.
§ 405(g), remanded for further proceedings. Doc. 21. He
now requests, under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, an award of
$5908.68 in attorney's fees. Doc. 23. The Commissioner
does not oppose the request. Doc. 23 at 1 (petition titled as
ruling on an EAJA request, a court must decide if the
requesting party is eligible and the requested attorney's
fees are reasonable. Comm'r, I.N.S. v. Jean, 496
U.S. 154, 160-61 (1990). A party is eligible if (1) he
prevailed in a case against the United States, (2) he timely
requested them, (3) his net worth did not exceed $2 million
when he filed the case, (4) the United States' position
was not substantially justified, and (5) no special
circumstance would make the award unjust. Id. at
158; 28 U.S.C. § 2412(d)(1) & (2).
social-security plaintiff prevails if the court orders a
sentence-four remand. Shalala v. Schaefer, 509 U.S.
292, 300-02 (1993). An EAJA request is timely if made within
30 days of the final judgment, which, if no appeal is taken,
is 90 days from the judgment's entry. See 28
U.S.C. § 2412(d)(1)(B) & (d)(2)(G) (“final
judgment” is judgment that is final and not
appealable); Fed. R. App. P. 4(a)(1)(B) (notice of appeal
must be filed within 60 days of judgment in case in which
United States is party). A premature EAJA request is timely.
Myers v. Sullivan, 916 F.2d 659, 679 n.20 (11th Cir.
1990). An EAJA request must contain an allegation that the
Commissioner's position was not substantially justified,
Jean, 496 U.S. at 160, and, if made, the
Commissioner bears the burden of showing that it was,
United States v. Jones, 125 F.3d 1418, 1425 (11th
Cir. 1997). A court may deny an EAJA request based on
equitable considerations. Scarborough v. Principi,
541 U.S. 401, 422-23 (2004).
first four conditions are satisfied here, and, as to the
fifth, no equitable consideration is apparent or presented
that would make an EAJA award unjust. Bey prevailed because
the Court ordered a sentence-four remand. Doc. 21 at 6; Doc.
22. Bey's April 9, 2019, request, Doc. 23, was timely
because he made it ten days after entry of judgment, Doc. 22.
Bey represents that his net worth did not exceed $2 million
when he filed this case, Doc. 23 at 2, and the Court accepts
that representation. Bey's motion includes an allegation
that the Commissioner's position was not substantially
justified, Doc. 23 at 2, 6, and the Commissioner has not
attempted to satisfy his burden of showing otherwise. The
Commissioner does not contend that this case presents a
special circumstance, and none is apparent. Thus, Bey is
eligible to receive an EAJA award, and the only remaining
issue is whether the requested amounts are reasonable.
EAJA provides an attorney's fee “shall be based
upon prevailing market rates for the kind and quality of the
services furnished, except ... shall not be awarded in excess
of $125 per hour unless the court determines that an increase
in the cost of living [since 1996, the date of the last
amendment to the amount, ] 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)(ii). An EAJA award is to the
party, not to his attorney. Astrue v. Ratliff, 560
U.S. 586, 592-93 (2010).
EAJA ... establishes a two-step analysis for determining the
appropriate hourly rate to be applied in calculating
attorney's fees under the Act.” Meyer v.
Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992).
“The first step ... is to determine the market rate for
similar services provided by lawyers of reasonably comparable
skills, experience, and reputation.” Id.
(internal quotation marks omitted). “The second step,
which is needed only if the market rate is greater than
[$125] per hour, is to determine whether the court should
adjust the hourly fee upward from [$125] to take into account
an increase in the cost of living [since 1996], or a special
factor.” Id. at 1033-34. “By allowing
district courts to adjust upwardly the [$125] hourly fee cap
to account for inflation, Congress undoubtedly expected that
the courts would use the cost-of-living escalator to insulate
EAJA fee awards from inflation[.]” Id. at
adjusting the fee cap, a court should use the cost of living
increase to when the attorney performed the work, not to a
later time. Masonry Masters, Inc. v. Nelson, 105
F.3d 708, 711-12 (D.C. Cir. 1997). To do otherwise amounts to
awarding interest for which the United States has not waived
sovereign immunity. Id.; see also
United States v. Aisenberg, 358 F.3d 1327, 1346 n.28
(11th Cir. 2004) (finding Masonry and similar
opinions persuasive in an analogous context).
party requesting fees must demonstrate reasonableness.
Norman v. Housing Auth. of City of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988). That burden includes
“supplying the court with specific and detailed
evidence.” Id. at 1303. A court is
“‘itself an expert'” on reasonable
rates, may consider its own “‘knowledge and
experience'” concerning reasonable rates, and may
“‘form an independent judgment either with or
without the aid of witnesses as to value.'”
Id. at 1303 (quoting Campbell v. Green, 112
F.2d 143, 144 (5th Cir.1940)). If there is lack of support, a
court may make the award on its own experience if it provides
sufficient information to allow meaningful review.
Id. at 1303-04.
demonstrating the reasonableness of rates, a party requesting
fees must show the reasonableness of the number of hours
expended. Watford v. Heckler, 765 F.2d 1562, 1568
(11th Cir. 1985). Fees for time spent preparing an EAJA
request are allowed. Jean v. Nelson, 863 F.2d 759,
779-80 (11th Cir. 1988).
represented by L. Jack Gibney, Esquire. Gibney provides no
affidavit on his experience or customary rate, but it is
known in the legal community and reflected in his many
appearances in social-security cases here that he specializes
in social-security work and has done so for many years.
Records of The Florida Bar indicate he has been a member
since 1984. See “Find a Lawyer” on
submits a “Statement of Professional Services”
from Gibney's firm. Doc. 23-1. Gibney spent 30 hours on
the case: 29.5 between February and August 2018, and .5 in
March 2019. The statement shows the tasks Gibney
performed and the time he took to perform them. Tasks include
reviewing the record and rulings, discussing the case with
Bey, and preparing the brief in opposition to the
Commissioner's decision. Doc. 23-1. The .5 hours for work
performed in March 2019 was to review the order and judgment
reversing the Commissioner's decision and prepare a
letter to Bey. Doc. 23-1 at 2. The administrative record is
511 pages. Docs. 13-13-10.
$5908.68 request is based on the total time in 2018 (29
hours) multiplied by $200.25 (equaling $5807.25), plus the
total time in 2019 (.5 hours) multiplied by $202.875
(equaling $101.43). Doc. 23 at 2-3. The $200.25 2018 rate is
based on the $125 EAJA cap and a cost-of-living increase
indexed from March 1996 to March 2018 (when Bey filed the
complaint). Doc. 23 at 2. The $202.875 2019 rate is based on
the EAJA cap and a cost-of-living increase indexed from March
1996 to February 2019 (which he states is the average index
for the year at the time when Bey filed the motion in April).
Doc. 23 at 3.
first step (determining the market rate for similar services
provided by lawyers of reasonably comparable skills,
experience, and reputation), based on the Court's own
knowledge and expertise, the Court finds the market rate in
Jacksonville for services provided ...