United States District Court, M.D. Florida, Orlando Division
Patricia D. Barksdale United States Magistrate Judge
in the case, the Court reversed the Commissioner of Social
Security's denial of Heather Cerbasi's applications
for disability benefits and supplemental security income and,
under sentence four of 42 U.S.C. § 405(g), remanded for
further proceedings. Docs. 27, 28, 29. She now requests,
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, an award of $5581.55 in attorney's
fees. Doc. 31. The Commissioner does not oppose
the request. Doc. 31 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). 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. Cerbasi prevailed
because the Court ordered a sentence-four remand. Docs. 27,
28, 29. Her November 25, 2019, request, Doc. 31, was timely
because she made it within thirty days of when the
Court's September 17, 2019, judgment, Doc. 30, became
final. She represents that her net worth did not exceed $2
million when she filed this case, Doc. 31 at 1-2, and the
Court accepts that representation. Cerbasi's motion
includes an allegation that the Commissioner's position
was not substantially justified, Doc. 31 at 2, Doc. 31-1 at
3, 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, Cerbasi is eligible to receive an EAJA
award, and the only remaining issue is whether the requested
amount is 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 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 Shea A. Fugate, Esquire. According to a
declaration by Fugate, she has been licensed to practice law
in Florida since 1996, has since worked on social-security
cases before the agency and courts, and that type of work
accounts for more than 95 percent of her practice. Doc. 31-2
at 1. She has handled more than 2000 social-security cases,
and when she consults with other attorneys in social-security
cases, she is paid an hourly rate of $200 (or $250 if serving
as an expert). Doc. 31-2 at 2.
submits a “Schedule of Hours” from Fugate's
firm. Doc. 31-2 at 3-4. Fugate spent 27.7 hours on the case
between July 2018 and November 2019. Doc. 31-2 at 3-4. The
schedule shows the tasks she performed and the time she took
to perform them. Tasks included preparing the complaint,
meeting with or talking to Cerbasi, reviewing the
administrative record, and preparing the brief. Doc. 31-2 at
3-4. The administrative record is more than 1000 pages. Docs.
$5581.55 request is based on the total time (27.7 hours)
multiplied by $201.50. Doc. 31 at 1, Doc. 31-1 at 2-3, Doc.
31-4. The $201.50 rate is based on the $125 EAJA cap and a
cost-of-living increase indexed from March 1996 to the
average CPI index for 2018 (when Cerbasi filed the
complaint). Doc. 31-4.
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 ...