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 Yamilet Velazquez's application
for supplemental security income and, under sentence four of
42 U.S.C. § 405(g), remanded for further proceedings.
Docs. 18, 19. She now requests, under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, an
award of $6577.35 in attorney's fees. Doc. 20. The
Commissioner does not oppose the request. Doc. 20 at 2.
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) she prevailed in a case against the United States, (2)
she timely requested them, (3) her net worth did not exceed
$2 million when she 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). 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. Velazquez prevailed
because the Court ordered a sentence-four remand. Docs. 18,
19. Her December 3, 2019, request, Doc. 20, is timely because
she made it within thirty days of when the Court's
September 24, 2019, judgment, Doc. 19, became final. She
represents that her net worth does not exceed $2 million and
she is not excluded from eligibility for an EAJA award, Doc.
20 at 2, which the Court construes as a statement that her
net worth did not exceed $2 million when she filed the case.
Her motion includes an allegation that the Commissioner's
position was not substantially justified, Doc. 20 at 1-2, 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, Velazquez is eligible to receive an EAJA award, and the
only remaining issue is whether the requested amount is
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 her 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).
is represented by Erik Berger, Esquire. 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
submits an “Itemization of Time” from
Berger's firm. Doc. 20 at 5. Berger spent 32.5 hours on
the case between June 2018 and November 2019. Doc. 20 at 5.
The schedule shows the tasks Berger performed and the time he
took to perform them. Tasks included preparing the complaint,
corresponding with Velazquez, reviewing the administrative
record, and preparing the brief. Doc. 20 at 5. The
administrative record is more than 600 pages. Docs. 12-12-11.
$6577.35 request is based on the total time (32.5 hours)
multiplied by $202.38. Doc. 20 at 3. The $202.38 rate is
based on the $125 EAJA cap and a cost-of-living increase
indexed from March 1996 to August 2018 (when Velazquez filed
the complaint) using the Consumer Price Index. Doc. 20 at
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 ...