United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
ARNOLD SANS ONE UNITED STATES MAGISTRATE JUDGE
Marie Lucas-Williamson moves for an award of attorney's
fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. (Doc. 22). Ms. Lucas-Williamson requests $8,
534.63 in attorney's fees. (Id.). The
Commissioner agrees fees should be awarded but opposes the
amount Ms. Lucas-Williamson requests. (Doc. 23). Ms.
Lucas-Williamson replied in opposition to the
Commissioner's response. (Doc. 29).
court may award attorney's fees under the EAJA upon a
showing that: (1) the claimant is a prevailing party, (2) the
government's position was not substantially justified,
(3) the claimant's application was timely filed, (4) the
claimant's net worth was less than $2 million when the
complaint was filed, and (5) no circumstances make the award
unjust. See 28 U.S.C. § 2412(d). The fee award
must also be reasonable. 28 U.S.C. § 2412(d)(2)(A).
Commissioner does not dispute that Ms. Lucas-Williamson
satisfied all five requirements. (Docs. 23). The issue raised
is the reasonableness of the hours claimed by Ms.
Lucas-Williamson's counsel. (Id.). “[T]he
measure of reasonable hours is determined by the
profession's judgment of the time that may be
conscionably billed and not the least time in which it might
theoretically have been done.” Norman v. Housing
Authority of the City of Montgomery, 836 F.2d 1292, 1306
(11th Cir. 1988). The court should exclude hours found to be
“excessive, redundant, or otherwise unnecessary.”
Resolution Trust Corp. v. Hallmark Builders Inc.,
996 F.2d 1144, 1149 (11th Cir.1993).
court is “an expert on the question [of attorney's
fees] and may consider its own knowledge and experience
concerning reasonable and proper fees and may form an
independent judgment either with or without the aid of
witnesses as to value.” Norman, 836 F.2d at
1303. The court must exercise its independent judgment when
reviewing a claim for hours reasonably expended. Id.
at 1301-02. “Ultimately, the computation of a fee award
is necessarily an exercise of judgment, because
‘[t]here is no precise rule or formula for making these
determinations.'” Villano v. City of Boynton
Beach, 254 F.3d 1302, 1305 (11th Cir. 2001).
Carol Avard and Craig Polhemus represent Ms.
Lucas-Williamson. Ms. Avard spent 2.0 hours in 2018 at an
hourly rate of $202.50, for $405. (Doc. 22, p. 17). Ms. Avard
spent 31.6 hours in 2019 at an hourly rate of $203.75, for
$6, 438.50. (Id.). Mr. Polhemus spent 6.0 hours in
2019 at an hourly rate of $203.75, for $1, 222.50.
(Id. at pp. 17-18). An unnamed attorney spent 2.3
hours in 2019 at an hourly rate of $203.75, for $468.63.
(Id.). In sum, Ms. Lucas-Williamson requests an
award of $8, 543.63 in attorney's fees, for 41.9 hours of
legal work performed in 2018 and 2019. (Id.).
issues in this appeal were not novel and were never decided
by the court because the government requested the court
reverse and remand the case. (Doc. 19). Even though the
issues never required the court's consideration, in her
40-page portion of the draft joint memorandum, Ms.
Lucas-Williamson argued that the ALJ committed reversible
error by (1) improperly relying on a vocational expert's
testimony that was inconsistent with the Dictionary of
Occupational Titles; (2) improperly weighing a treating
physician's opinions; (3) improperly evaluating Ms.
Lucas-Williamson's subjective complaints; (4) reopening a
prior application; (5) failing to find Ms. Lucas-Williamson
met listing 12.05; and (6) lacking authority to decide the
case. (Doc. 23-2). Although Ms. Lucas-Williamson raised six
issues, four issues consisted of two to three-page arguments.
(Id.). The other two issues required approximately
five pages of argument each. (Id.). Thus, 41.9 hours
is excessive and should be reduced. See Huntley v.
Comm'r of Soc. Sec., No. 6:12-cv-613-Orl-37TBS, 2013
WL 5970717 (M.D. Fla. Nov. 8, 2013) (stating that “an
award in excess of thirty hours is uncommon”).
hours billed also include clerical and non-compensable tasks.
See Mobley v. Apfel, 104 F.Supp.2d 1357, 1360 (M.D.
Fla. 2000) (“[T]asks of a clerical nature are not
compensable as attorney's fees.”). Clerical tasks
include but are not limited to “reviews of the summons
and the civil coversheet, preparation of the letter to the
Clerk of Court with the federal filing package, receipt and
reviews of emails, and creation of emails to the paralegal or
co-counsel.” Ward v. Astrue, No.
3:11-cv-523-J-TEM, 2012 WL 1820578, at *3 (M.D. Fla. May 18,
Lucas-Williamson is seeking attorney time for non-compensable
tasks such as “Attorney rev. of Standing Order, ”
“Attorney rev. of Related Case Order and Notice of
Designation, ” and “Memorandum of Law emailed to
defendant.” (Doc. 22, pp. 17-18). See Espino v.
Comm'r of Soc. Sec., No. 6:14-cv-1185-ORL-TBS, 2015
WL 6705453, at *2 (M.D. Fla. Nov. 2, 2015) (finding similar
tasks non-compensable); Ward v. Astrue, No.
3:11-cv-523-J-TEM, 2012 WL 1820578, at *3 (M.D. Fla. May 18,
2012) (same). Though these charges are minimal and so will
not trigger a line-byline critique of each billed task and
the amount of time billed, these charges do signal an overall
lack of billing judgment.
these reasons, an across-the-board cut is appropriate.
See Garverick v. Comm'r of Soc. Sec., No.
2:15-cv-385-CM, 2017 WL 1838483, at *4 (M.D. Fla. May 8,
2017) (reducing attorney's fees hours by 35%);
Espino, 2015 WL 6705453, at *2 (same). Ms.
Lucas-Williamson's requested attorney's fees award of
$8, 534.63 should be reduced by 25% to $6, 400.97, which is
reasonable compensation for the work performed.
in the reply brief, Ms. Lucas-Williamson's counsel's
requests another $210.37 in fees, representing 1.1 hours
spent on drafting the reply brief. (Doc. 29, p. 3). Counsel
requested leave to file the reply brief and, in violation of
the local rules, filed the reply brief in advance of the
court permitting the additional brief. (Doc. 24). Because the
reply brief did nothing but repeat the arguments made in the
opening brief and cite case law that could have been cited in
the opening brief, counsel's request for additional
attorney's fees should be denied. See Martin v.
Comm'r of Soc. Sec, No. 6:17-cv-1974-ORL-KRS, 2018
WL 8578026, at *4 (M.D. Fla. Dec. 6, 2018) (denying
counsel's request for fees for preparing a reply brief).
RECOMMENDED that Ms. Lucas-Williamson's
Motion for Attorney's Fees (Doc. 22) be GRANTED
in part and DENIED in part:
Lucas-Williamson should be awarded $6,
400.97 in attorney's fees.
United States Department of the Treasury should determine
whether Ms. Lucas-Williamson owes a debt to the government.
If Ms. Lucas-Williamson has no discernable federal debt, the
government should accept Ms. Lucas-Williamson assignment of
EAJA fees and pay the fees ...