United States District Court, M.D. Florida, Tampa Division
Michael M. Howard, Plaintiff,
Commissioner of Social Security, Defendant.
Patricia D. Barksdale United States Magistrate Judge.
in the case, the Court reversed the Commissioner of Social
Security's denial of Michael Howard's applications
for disability insurance benefits and supplemental security
income 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, $3612.31 in
attorney's fees. Doc. 23. He states that the Commissioner
opposes the request, Doc. 23 at 2, 5, but the Commissioner
filed no response in opposition, and the time to do so has
ruling on an EAJA request, a court must decide if the
requesting party is eligible and the requested attorney's
fees 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). An EAJA request must allege the
Commissioner's position was not substantially justified,
Jean, 496 U.S. at 160, and, if alleged, 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. Howard prevailed
because the Court ordered a sentence-four remand. Docs. 21,
22. His December 13, 2019, request, Doc. 23, is timely
because he made it within thirty days of when the Court's
September 27, 2019, judgment, Doc. 22, became final. He
represents that his net worth did not exceed $2 million when
he filed the case, Doc. 23 at 2, and the Court accepts the
representation. His motion includes an allegation that the
Commissioner's position was not substantially justified,
Doc. 23 at 1, and the Commissioner has not tried to satisfy
his burden of showing otherwise. The Commissioner does not
contend this case presents a special circumstance, and none
is apparent. Thus, Howard 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 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
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).
is represented by Martin J. Cohen, Esquire. According to an
affidavit by Cohen, he devotes 90 percent of his practice to
social-security cases, his customary hourly rate for
non-contingent cases is $125, and the prevailing
non-contingent hourly rate in Tampa Bay where his firm is
located and where he filed the case is between $100 and $350.
Doc. 23 at 5-6. Records of The Florida Bar indicate Cohen has
been a member since 2002. See “Find a
Lawyer” on www.floridabar.org.
submits an “Itemization of Services Rendered”
from Cohen's firm. Doc. 23-1. Cohen spent 18.5 hours on
the case between July 2018 and September 2019. Doc. 23-1. The
itemization shows the tasks Cohen performed and the time he
took to perform them. Tasks included preparing the complaint,
corresponding with Howard, reviewing the administrative
record, and preparing the brief. Doc. 23-1. The
administrative record is more than 900 pages. Docs. 14-14-16.
$3612.31 request is based on the total time (18.5 hours)
multiplied by $195.26. Doc. 23 at 2-3. The $195.26 rate is
based on the $125 EAJA cap and a cost-of-living increase
indexed from March 1996 to the 2017 average using the
Consumer Price Index. Doc. 23 at 2-3.
first step (determining the market rate for similar services
provided by lawyers of reasonably comparable skills,
experience, and reputation), based on the information
provided and the Court's own knowledge and expertise, the
Court finds the market rate in Tampa for services provided by
lawyers of comparable skills, experience, and reputation
exceeds $125 an hour.
second step (determining whether to adjust the rate upward
from $125), the Court finds the increase in the cost of
living justifies an upward adjustment from $125 based on the
increase in the cost of living from March 1996 to when Cohen
performed his work. The $195.26 rate that Howard proposes for
Cohen's work is appropriate (and slightly lower than the
$202.32 rate Cohen could have sought for work in 2018 and the
$202.08 rate he could have sought for work in 2019).
See U.S. Dept. of Labor, ...