Brown v. Commissioner of Social Security

United States District Court

Middle District of Florida

Jacksonville Division

LLOYD BROWN,

Plaintiff,

v. NO. 3:19-cv-1096-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Earlier in the case, the Court reversed the denial of Lloyd Brown’s application

for disability-insurance benefits and supplemental-security income and, under

sentence four of 42 U.S.C. § 405(g), remanded for further proceedings. Doc. 19. He

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

$9281.25 in attorney’s fees.

* Doc. 21. The Commissioner of Social Security has no opposition. Doc. 21 at 2.

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

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

*With his request for attorney’s fees, Brown includes a paragraph requesting

$400 in costs for filing the complaint. Doc. 21 at 3. But Brown proceeded in forma

pauperis, Doc. 4, and therefore never paid costs. The Court presumes Brown’s counsel

used a template and included the paragraph by mistake and construes the request as

one for attorney’s fees only.

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 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.

Brown prevailed because the Court ordered a sentence-four remand. Doc. 19. Brown’s

June 15, 2020, request, Doc. 21, was timely because he made it within 30 days of the

final judgment, Doc. 20. Brown represents that his net worth is less than $2 million,

Doc. 21 at 2, and his affidavit with his motion for leave to proceed in forma pauperis

shows his net worth did not exceed $2 million when he filed the case, Doc. 2. Brown’s

motion includes an allegation that the Commissioner’s position was not substantially

justified, Doc. 21 at 1, 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, Brown is eligible to receive an EAJA

award, and the only remaining issue is whether the requested amount is reasonable.

The EAJA provides attorney’s fees “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).

“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).

Brown is represented by Erik Berger, Esquire. Berger provides no affidavit on

his experience or customary rate, but his lengthy experience in social-security cases

is known in the legal community and reflected in his many appearances in social-

security cases here. Records of The Florida Bar indicate he has been a member since

1997. See “Find a Lawyer” on www.floridabar.org.

Brown submits an “Itemization of Time” from Berger. Doc. 21 at 5. Berger

spent 51.8 hours on the case between August 20, 2019, and May 19, 2020. Doc. 21 at

5. After consultation with the Commissioner, Berger agreed to reduce his hours to 45.

Doc. 21 at 5 n.2. The schedule shows the tasks he performed and the time he took to

perform them. Tasks included reviewing the file, performing legal research, and

preparing the brief. Doc. 21 at 5. The administrative record is approximately 2468

pages. Doc. 12.

The amount requested ($9281.25) is based on the total negotiated hours spent

by Berger on the case (45 hours) multiplied by $206.25 an hour. Doc. 21 at 3.

According to Brown, the rates are based on the $125 cap and a cost-of-living increase

indexed from March 1996 to September 2019 (when Brown filed the complaint) using

the urban consumer price index. Doc. 21 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 similar 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 rate proposed is slightly off—the rate should be $206.13 an

hour, not $206.25 an hour. See U.S. Dept. of Labor, Bureau of Labor Stats., CPI

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

June 17, 2020).

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

secretarial, and none appears excludable as unnecessary. Doc. 21 at 5. The number

of hours is reasonable.

Using the number of hours (45) and requested rate ($206.13), attorney’s fees of

$9275.85 are reasonable.

Because Brown is eligible and the negotiated attorney’s fees (as slightly

adjusted to accurately reflect the cost-of-living increase) are reasonable, the Court

grants the motion, Doc. 21; to the extent the Court awards Brown $9275.85 in

attorney’s fees; and directs the Clerk of Court to enter judgment for Lloyd Brown

and against the Commissioner of Social Security in the total amount of $9275.85 in

attorney’s fees.

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

assignment of EAJA fees to Berger after determining if Brown owes a federal debt.

Ordered in Jacksonville, Florida, on June 23, 2020.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Cc: Counsel of Record