Velazquez v. Commissioner of Social Security

United States District Court

Middle District of Florida

Jacksonville Division

YAMILET DOMINGUEZ VELAZQUEZ,

Plaintiff,

V. NO. 3:18-CV-934-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Earlier 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.

In 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).

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). 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 (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.

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

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 her 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’” 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.

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).

Velazquez 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

www.floridabar.org.

Velazquez 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.

Velazquez’s $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 2–3.

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 from March 1996 to when Berger

performed his work. The $202.38 rate that Velazquez proposes for Berger’s work is

appropriate. See U.S. Dept. of Labor, Bureau of Labor Stats., CPI Inflation Calculator

https://www.bls.gov/data/inflation_calculator.htm (last visited December 5, 2019).

On the reasonableness of the hours, none of the work appears clerical or

secretarial, and none appears excludable as unnecessary. See Doc. 20 at 5. The

number of hours is reasonable.

Using the number of hours (32.5) and requested rate ($202.38), attorney’s fees

of $6577.35 are reasonable.

Because Velazquez is eligible and the attorney’s fees are reasonable, the Court

grants the motion for EAJA fees, Doc. 20; awards her $6577.35 in attorney’s fees; and

directs the Clerk of Court to enter judgment for Yamilet Velazquez and against the

Commissioner in the amount of $6577.35 in attorney’s fees.

The Court leaves to the Commissioner’s discretion whether to accept

Velazquez’s assignment of EAJA fees to Berger after determining if Velazquez owes

a federal debt. See Doc. 20 at 4, Doc. 20-1.

Entered in Jacksonville, Florida, on December 16, 2019.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Cc: Counsel of Record