# Malave v. Commissioner of Social Security

> District Court, M.D. Florida · April 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10107376

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107376

## How later opinions describe it (automated extraction)

- finding Masonry and similar opinions persuasive in an analogous context

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107376. Public record. Not legal advice.