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 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.
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.
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).
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
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
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).
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'” 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.
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).
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
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. 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.
$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 ...