Bey v. Commissioner of Social Security

United States District Court

Middle District of Florida

Jacksonville Division

KHALID BEY,

Plaintiff,

v. NO. 3:18-CV-319-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Earlier in the case, the Court reversed the Commissioner of Social Security’s

denial of Khalid Bey’s application for disability benefits and, under sentence four of

42 U.S.C. § 405(g), remanded for further proceedings. Doc. 21. He now requests,

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, an award of

$5908.68 in attorney’s fees. Doc. 23. The Commissioner does not oppose the request.

Doc. 23 at 1 (petition titled as “unopposed”).1

In 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

1Bey separates the document into two parts: the petition for fees, Doc. 23 at 1–4,

and a memorandum of law in support of the petition, Doc. 23 at 5–8. Local Rule 3.01(a)

provides, “In a motion or other application for an order, the movant shall include a concise

statement of the precise relief requested, a statement of the basis for the request, and a

memorandum of legal authority in support of the request, all of which the movant shall

include in a single document not more than twenty-five (25) pages.” Local Rule 3.01(a)

(emphasis added). While the petition and memorandum are technically within the same

document, they appear as two separate documents given that each are signed by counsel

and have certificates of service. Bey’s counsel is familiar with this rule. See Atwell v.

Comm’r of Soc. Sec., 3:16-cv-1093-J-PDB (Doc. 19 at 1 n.1).

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).

A 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 contain an allegation that the Commissioner’s

position was not substantially justified, Jean, 496 U.S. at 160, and, if made, the

Commissioner bears the burden of showing that 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 (2004).

The 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. Bey

prevailed because the Court ordered a sentence-four remand. Doc. 21 at 6; Doc. 22.

Bey’s April 9, 2019, request, Doc. 23, was timely because he made it ten days after

entry of judgment, Doc. 22. Bey represents that his net worth did not exceed $2

million when he filed this case, Doc. 23 at 2, and the Court accepts that

representation. Bey’s motion includes an allegation that the Commissioner’s position

was not substantially justified, Doc. 23 at 2, 6, and the Commissioner has not

attempted to satisfy his burden of showing otherwise. The Commissioner does not

contend that this case presents a special circumstance, and none is apparent. Thus,

Bey is eligible to receive an EAJA award, and the only remaining issue is whether

the requested amounts are reasonable.

The 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 to his attorney. Astrue v. Ratliff, 560 U.S. 586, 592–93 (2010).

“The 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 1034.

If 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).

The 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’” concerning 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.

Besides 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).

Bey is represented by L. Jack Gibney, Esquire. Gibney 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 that he specializes in social-

security work and has done so for many years. Records of The Florida Bar indicate

he has been a member since 1984. See “Find a Lawyer” on www.floridabar.org.

Bey submits a “Statement of Professional Services” from Gibney’s firm. Doc.

23-1. Gibney spent 30 hours on the case: 29.5 between February and August 2018,

and .5 in March 2019.2 The statement shows the tasks Gibney performed and the

time he took to perform them. Tasks include reviewing the record and rulings,

discussing the case with Bey, and preparing the brief in opposition to the

Commissioner’s decision. Doc. 23-1. The .5 hours for work performed in March 2019

was to review the order and judgment reversing the Commissioner’s decision and

prepare a letter to Bey. Doc. 23-1 at 2. The administrative record is 511 pages. Docs.

13–13-10.

2The statement lists the total billable hours as 29.5. Doc. 23-1 at 2. Bey explains

Gibney seeks payment for 29 hours of work in 2018 and .5 hours in 2019. Doc. 23 at 2–3.

The statement indicates he performed 29.5 hours of work in 2018 and .5 hours in 2019.

The Court uses the requested 29 hours for 2018.

Bey’s $5908.68 request is based on the total time in 2018 (29 hours) multiplied

by $200.25 (equaling $5807.25), plus the total time in 2019 (.5 hours) multiplied by

$202.875 (equaling $101.43).3 Doc. 23 at 2–3. The $200.25 2018 rate is based on the

$125 EAJA cap and a cost-of-living increase indexed from March 1996 to March 2018

(when Bey filed the complaint). Doc. 23 at 2. The $202.875 2019 rate is based on the

EAJA cap and a cost-of-living increase indexed from March 1996 to February 2019

(which he states is the average index for the year at the time when Bey filed the

motion in April). Doc. 23 at 3.

On the 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 by lawyers of comparable skills, experience, and reputation

exceeds $125 an hour.

On the 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 for urban areas from April 1996 to

when Gibney performed his work. The rates proposed are reasonable (and slightly

lower than the March 2018 rate using the inflation calculator [$200.35] and the

February 2019 rate [$202.94]).4 See U.S. Dept. of Labor, Bureau of Labor Stats., CPI

Inflation Calculator https://www.bls.gov/data/inflation_calculator.htm (last visited

September 3, 2019). On the reasonableness of the hours, none of the work by Gibney

3Bey appears to have rounded down. Rounding up, $202.875 multiplied by .5 is

$101.44. (If he had rounded the rate up to $202.88, the total would still be $101.44). The

Court uses the requested rate of $101.43.

4Those rates are also slightly lower than the rates later in 2018 and in March 2019

when Gibney performed other work. (Why Bey picked March 2018 and February 2019 is

unclear given that he also performed work later in those years.)

appears clerical or secretarial, and none appears excludable as unnecessary. See Doc.

23-1. The number of hours is reasonable.

Using the number of hours requested and rates requested, attorney’s fees of

$5908.68 ($5807.25 [2018 total] plus $101.43 [2019 total]) are reasonable.

Because Bey is eligible and his requested attorney’s fees are reasonable, the

Court grants the motion for EAJA fees, Doc. 23; awards him $5908.68 in attorney’s

fees; and directs the Clerk of Court to enter judgment in favor of Khalid Bey and

against the Commissioner in the amount of $5908.68. The Court leaves to the

Commissioner’s discretion whether to accept Bey’s assignment of EAJA fees to

Gibney after determining if he owes a federal debt. See Docs. 23-2, 23-3.

Ordered in Jacksonville, Florida, on September 5, 2019.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Cc: Counsel of Record