Bianco v. Commissioner of Social Security

United States District Court

Middle District of Florida

Jacksonville Division

CAROL BIANCO,

Plaintiff,

v. NO. 3:19-cv-733-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

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

final decision denying Carol Bianco’s application for benefits and, under sentence four

of 42 U.S.C. § 405(g), remanded for further proceedings. Docs. 19, 20. She now

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

of $8225.20 in attorney’s fees. Doc. 21. The Commissioner presents 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) she prevailed in an action against

the United States, (2) she timely requested the fees, (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 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.

Bianco prevailed because the Court ordered a sentence-four remand. Docs. 19, 20.

Her December 18, 2020 request, Doc. 21, is timely because she made it before the

September 30, 2020, judgment, Doc. 20, became final. She represents her net worth

is less than $2 million, Doc. 21 at 2, which the Court construes to mean her net worth

was less than $ 2 million when she filed the case. Her 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 that this case presents a special circumstance, and

none is apparent. Thus, Bianco 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 to her lawyer. 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.; accord 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)).

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).

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

his experience or customary rate, but his experience and specialization in social-

security matters 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.

Bianco submits an “Itemization of Time” from Berger’s firm. Doc. 21 at 5.

Berger spent 50.6 hours on the case between April 2019 and December 2020. Doc. 21

at 5. Based on an agreement between the parties, Bianco seeks fees for only 40 hours

of work. Doc. 21 at 3 n.1, 5 n.2. The itemization shows the tasks Berger performed

and the time he took to perform them. Tasks included preparing the complaint,

reviewing the 1245-page administrative record, preparing the brief, and preparing

the EAJA petition. Doc. 21 at 5.

Bianco’s $8225.20 request is based on the total time requested (40 hours)

multiplied by $205.63. Doc. 21 at 2–3. The $205.63 rate is based on the $125 EAJA

cap and a cost-of-living increase indexed from March 1996 to June 2019 (when Bianco

filed the complaint) using the 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

undersigned’s own knowledge and expertise, the market rate in Jacksonville for

services 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 $205.63 rate Bianco proposes for Berger’s work is

appropriate (and one cent lower than the $205.64 rate calculated using the CPI

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

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

22, 2020).

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

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

are reasonable.

Using the reasonable number of hours and the reasonable rate, attorney’s fees

of $8225.20 (40 hours x $205.63) are reasonable.

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

assignment of EAJA fees after determining if she owes a federal debt. See Doc. 21-1

(contingent fee agreement including assignment of EAJA fees).

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

Court grants the motion, Doc. 21; awards her $8225.20 in attorney’s fees; and

directs the Clerk of Court to enter judgment in favor of Carol Bianco and against the

Commissioner of Social Security for $8225.20 in attorney’s fees.

Ordered in Jacksonville, Florida, on December 28, 2020.

PATRICIA D. BARKSDALE

United States Magistrate Judge