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Powell v. Commissioner of Social Security

United States District Court, M.D. Florida, Jacksonville Division

October 21, 2019

Victor Edward Powell, Plaintiff,
Commissioner of Social Security, Defendant.


          Patricia D. Barksdale United States Magistrate Judge.

         Earlier in the case, the Court reversed the Commissioner of Social Security's denial of Victor Powell's application for disability benefits and, under sentence four of 42 U.S.C. § 405(g), remanded for further proceedings. Docs. 21, 22. He now requests, under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, an award of $12, 150 in attorney's fees and $400 in costs. Doc. 23. The Commissioner does not oppose an award of fees but opposes the amount requested, contending the number of hours worked is unreasonable. Doc. 24.

         In June 2018, Powell, represented by Erik Berger, Esquire, filed the complaint. Doc. 1. Berger had also represented Powell during the administrative proceedings, including at a hearing before an administrative law judge (“ALJ”). Tr. 30, 125-26. The Commissioner filed an answer, Doc. 10, and a copy of the administrative record, which is almost 5300 pages, Docs. 12-12-54, Docs. 13-13-53. Much of the administrative record consists of medical records from the Department of Veterans Affairs, some dating as far back as 1989. Tr. 333-787, 1189-1800, 1836-3343. (Powell alleged he had become disabled on August 26, 2016. Tr. 33.) Powell filed a brief in opposition to the Commissioner's decision, raising three arguments: (1) the ALJ's finding that Powell had no mental limitations was not supported by substantial evidence, (2) the ALJ erred in his consideration of treating source opinions, and (3) the ALJ erred in his treatment of Powell's testimony. Doc. 19. The Commissioner moved to remand the case for an ALJ to evaluate Powell's residual functional capacity, evaluate all medical opinions and state the weight given to each opinion and the reason for that weight, and, if warranted, obtain evidence from a vocational expert. Doc. 20. The Court granted the motion to remand. Doc. 21. Powell filed the current motion, and the Commissioner responded. Docs. 23, 24.

         In ruling on an EAJA request, a court must decide if the requesting party is eligible and the requested attorney's fees and costs 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).

         A 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 allege that the Commissioner's position was not substantially justified, Jean, 496 U.S. at 160, and, if made, the Commissioner must show 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).

         The 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. Powell prevailed because the Court ordered a sentence-four remand. Docs. 21, 22. Powell's June 3, 2019, request, Doc. 23, was timely because he made it within thirty days of when the Court's March 6, 2019, judgment, Doc. 22, became final. Powell represents that he “is not excluded from eligibility for an award under EAJA by any of the exclusions set forth in the Act, ” Doc. 23 at 2, which the Court accepts as a representation that his net worth did not exceed $2 million when he filed this case. Powell's motion includes an allegation that the Commissioner's position was not substantially justified, Doc. 23 at 1, 5-6, and the Commissioner has not attempted to satisfy his burden of showing otherwise. The Commissioner does not contend this case presents a special circumstance, and none is apparent. Thus, Powell is eligible to receive an EAJA award, and the only remaining issue is whether the requested amounts are reasonable.

         The 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). Costs for items in 28 U.S.C. § 1920, which include clerk fees, are allowed. 28 U.S.C. §§ 2412(a) & 1920(1). An EAJA award is to the party, not his attorney. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010).

         “The 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 1034.

         If 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).

         The 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'” about 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.

         Besides 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).

         Berger 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 he specializes in social-security work and has done so for many years. Records of The Florida Bar indicate Berger has been a member since 1997. See “Find a Lawyer” on

         Powell submits an “Itemization of Time” from Berger's firm. Doc. 23 at 8-9. Berger spent 75.1 hours on the case: 69.6 between April and December 2018, and 5.5 between January and March 2019.[1] Doc. 23 at 8-9. He states that, “[i]n an excess of caution, [he] reduces the number of hours claimed … to 60 hours of services rendered.” Doc. 23 at 3. The statement shows the tasks Berger performed and the time he took to perform them. Tasks included reviewing the Appeals Council's decision, preparing the complaint, and corresponding with Powell. Doc. 23 at 8-9. Most time was spent reviewing the file to identify issues (42.7 hours) and preparing the brief (27.7 hours). Doc. 23 at 8.

         Powell's $12, 150 request is based on the total time (60 hours) multiplied by $202.50. Doc. 23 at 2-3. The $202.50 rate is based on the $125 EAJA cap and a cost-of-living increase indexed from March 1996 to the CPI ...

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