Malave v. Commissioner of Social Security

United States District Court

Middle District of Florida

Orlando Division

LILIANA BEATRIZ MALAVE,

Plaintiff,

v. NO. 6:20-cv-389-RBD-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Earlier in this action, the Court granted the Commissioner of Social

Security’s unopposed motion to remand the case, reversed the Commissioner’s

final decision denying Liliana Malave’s application for benefits and, under

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

19, 20, 21. She now requests, under the Equal Access to Justice Act (“EAJA”),

28 U.S.C. § 2412, an award of $3319.43 in attorney’s fees. Doc. 22. The

Commissioner presents no opposition. Doc. 22 at 3. The parties consented to

the undersigned’s authority to enter an order on the motion. Docs. 23, 24.

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. Malave prevailed because the Court ordered a sentence-four

remand. Docs. 19, 20, 21. Her February 9, 2021 request, Doc. 22, is timely

because she made it before the November 24, 2020, judgment, Doc. 21, became

final. She represents her net worth was less than $2 million when she filed the

case, Doc. 22 at 2, and the Court accepts that representation. Her motion

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

justified, Doc. 22 at 2, 6–7, 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, Malave 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).

Malave is represented by Richard Culbertson, Esquire, and Sarah

Jacobs, Esquire. Neither attorney provides an affidavit on experience or

customary rate. That they specialize in social-security work and have done so

for many years is known in the legal community and reflected in their many

appearances in social-security actions here (more than 100 for Richard

Culbertson and more than 20 for Jacobs). Records of The Florida Bar show

Richard Culbertson has been a member since 1991, and Jacobs has been a

member since 2011. See “Find a Lawyer” on www.floridabar.org.

Malave submits details of tasks performed for, and time spent on, the

action. Doc. 22 at 11–12. Culbertson worked 1.2 hours between March and

November 2020. Doc. 22 at 11. Jacobs worked 13.5 hours between February

and November 2020, and 1.2 hours in January and February 2021 (totaling

14.7 hours for Jacobs). Doc. 22 at 12. Their tasks included preparing the

complaint, reviewing the 593-page administrative record, preparing the brief,

and preparing the EAJA motion. Doc. 22 at 11–12.

Malave’s $3319.43 request is based on the total time requested (15.9

hours) multiplied by $208.77. Doc. 22 at 2, 7. The $208.77 rate is based on the

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

“annual all urban consumer price index [“CPI”] for 2020.” Doc. 22 at 9.

Referencing information from the CPI table from the United States

Department of Labor, Malave states the “annual all urban [CPI]” number is

260.065 (up from 155.7 in 1996). Doc. 22 at 9; see U.S. Dept. of Labor, Bureau

of Labor Stats., https://data.bls.gov/timeseries/CUUR0000SA0.

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 Orlando 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 Culbertson and Jacobs performed their work. But the 260.065

index number Malave uses to calculate the $208.77 rate is not the annual index

number for 2020 (the index number Malave seeks to use to calculate the rate);

that index number represents the average index number for the second half of

2020 (labeled as “HALF2”). See U.S. Dept. of Labor, Bureau of Labor Stats.,

CPI for All Urban Consumers, https://data.bls.gov/timeseries/CUUROOO0SAO.

The annual number, using the average of the “HALF and “HALF numbers

((257.557 + 260.065) divided by 2) is 258.811. See id. Using the 258.811 index

number, the appropriate rate is $207.78. Malave does not to seek to use a

different rate for the 1.2 hours of work performed in 2021.

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

secretarial, and none appears excludable as unnecessary. See Doc. 22 at 11—

12. The hours are reasonable.

Using the reasonable number of hours and the adjusted reasonable rate,

attorney’s fees of $3303.70 (15.9 hours x $207.78) are reasonable.

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

Malave’s assignment of EAJA fees after determining if she owes a federal debt.

See Doc. 22-1 (retainer agreement including assignment of EAJA fees).

Because Malave is eligible and the requested attorney’s fees (as

modified) are reasonable, the Court grants the motion in part, Doc. 22, and

awards her $3303.70 in attorney’s fees.

Ordered in Jacksonville, Florida, on April 21, 2021.

PATRICIA D. BARKSDALE

United States Magistrate Judge