Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JEAN BROWN,

Plaintiff,

v. Case No. 8:22-cv-856-CPT

KILOLO KIJAKAZI,

Acting Commissioner of the Social

Security Administration,

Defendant.

______________________________/

O R D E R

Before the Court is the Plaintiff’s unopposed motion for attorney’s fees and costs

pursuant to the Equal Access to Justice Act (EAJA or the Act). (Doc. 22). For the

reasons discussed below, the Plaintiff’s motion is granted.

I.

The Plaintiff initiated this action in April 2022 seeking judicial review of the

Commissioner’s decision denying her application for Disability Insurance Benefits.

(Doc. 1). In September 2022, the Commissioner moved for the entry of a judgment in

the Plaintiff’s favor and asked that the action be remanded in accordance with sentence

four of 42 U.S.C. § 405(g). (Doc. 19). The Court granted that request (Doc. 20), and

the Clerk of Court entered Judgment for the Plaintiff shortly thereafter (Doc. 21). The

instant motion, filed in mid-December 2022 and unopposed by the Commissioner,

followed. (Doc. 22).

II.

A.

The EAJA authorizes a court to grant attorney’s fees to any party prevailing in

litigation against the United States (including proceedings for judicial review of agency

action), unless the court determines that the government’s position was “substantially

justified” or that special circumstances exist which make such an award unjust. 28

U.S.C. § 2412(d). To warrant an award of attorney’s fees under the Act, three

conditions must be met: (1) a party must file a fee application within thirty days of the

final judgment; (2) a party must qualify as the prevailing party and her net worth must

not have exceeded $2,000,000 at the time she commenced the action; and (3) the

government’s position must not have been substantially justified and there must be no

other special circumstances that would render such an award unjust. Id.; Patton v.

Berryhill, 2017 WL 6520474, at *1 (M.D. Fla. Dec. 18, 2017) (citing Myers v. Sullivan,

916 F.2d 659, 666–67 (11th Cir. 1990)).

Each of these conditions has been satisfied here, as the Commissioner

effectively acknowledges by her lack of opposition. Thus, a grant of attorney’s fees

pursuant to the EAJA is appropriate in this matter.

In assessing the fee amount to be authorized, courts look to subsection

2412(d)(2)(A), which provides, in pertinent part:

The amount of fees [to be] awarded [to the prevailing party in any civil

action brought against any agency or any official of the United States]

shall be based upon [the] prevailing market rates for the kind and quality

of the services furnished, except that . . . attorney[’s] fees shall not be

awarded in excess of $125 per hour unless the court determines that an

increase in the cost of living 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).

As reflected by this statutory language, an analysis of the proper hourly rate

under the Act consists of two steps. First, a court must ascertain the market rate for

similar services provided by lawyers of comparable skill, experience, and reputation.

Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992) (quoting Norman v. Hous. Auth.

of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). Second, if the prevailing market

rate is more than $125 per hour, a court must decide whether to adjust the hourly rate

for an increase in the cost of living or some special factor. Id. at 1033–34.

The market rate during the relevant period for the type of work at issue in this

case is not subject to precise calculation. In the Court’s experience, counsel submitting

EAJA fee petitions for services performed since 2020 have typically sought hourly

rates exceeding $200. As a result, the hourly rate charged by competent attorneys in

this market has, for some time, surpassed the statutory cap of $125. The Court is not

alone in this observation. See, e.g., Burke v. Comm’r of Soc. Sec., No. 8:21-cv-1267-MSS-

SPF, (Doc. 25) (M.D. Fla. Apr. 25, 2022), report and recommendation adopted, (Doc. 26)

(M.D. Fla. May 23, 2022); Chartier v. Comm’r of Soc. Sec., 2022 WL 1289335, at *2

(M.D. Fla. Apr. 29, 2022); Britt v. Comm’r of Soc. Sec., 2022 WL 358674, at *2 (M.D.

Fla. Jan. 27, 2022), report and recommendation adopted, 2022 WL 356218 (M.D. Fla.

Feb. 7, 2022); Bragg v. Comm’r of Soc. Sec., 2021 WL 2226587, at *1 (M.D. Fla. June 2,

2021); Beacham ex rel. Beacham v. Comm’r of Soc. Sec., 2020 WL 8083591, at *1 (M.D.

Fla. Nov. 19, 2020), report and recommendation adopted, 2021 WL 82845 (M.D. Fla. Jan.

11, 2021). The Court therefore finds it appropriate to deviate upwardly from the

EAJA’s base fee rate to account for increases in the cost of living.

Courts in this district and elsewhere routinely compute cost of living

adjustments under the Act by using the Bureau of Labor Statistics’s Consumer Price

Index (CPI). See, e.g., Wilborn v. Comm’r of Soc. Sec., 2013 WL 1760259, at *1 (M.D.

Fla. Apr. 24, 2013); Rodgers v. Astrue, 657 F. Supp. 2d 1275, 1277 (M.D. Fla. 2009);

Morrison v. Astrue, 2010 WL 547775, at *2 (S.D. Fla. Feb. 12, 2010);1 see also Sprinkle v.

Colvin, 777 F.3d 421, 428 (7th Cir. 2015) (collecting various circuit court opinions

utilizing the CPI to evaluate hourly rate adjustments). Given this case law, the Court

finds it reasonable to employ the CPI as a guide for determining cost of living

increases under the EAJA. See U.S. DEP’T OF LABOR, BUREAU OF LABOR

STATISTICS, https://data.bls.gov/cgi-bin/surveymost?bls (last visited Dec. 21, 2022).

Here, the Plaintiff seeks $7,985.27 in attorney’s fees predicated upon a total of

34.4 hours expended in this action in 2022 by her lawyer, Erik Berger, at the hourly

1 For a discussion of the CPI data employed by many courts in this Circuit, as well as an explanation

of the cost of living adjustment calculation, see Sensat v. Berryhill, 2018 WL 5257143, at *6 n.12 (S.D.

Fla. Oct. 22, 2018).

rate of $232.13. (Doc. 22).2 To buttress her fee request, the Plaintiff submits, inter alia,

an itemized schedule of the services Mr. Berger rendered in the case. (Doc. 22-1). The

Commissioner does not object to the Plaintiff’s calculated fee figure.

In light of the Commissioner’s lack of opposition, as well as the Court’s own

knowledge and experience in addressing fee matters, the Court finds that the total

number of hours and the hourly rate claimed by counsel are both reasonable and

adequately supported. See Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292,

1303 (11th Cir. 1988); Barreras v. Comm’r of Soc. Sec., 2021 WL 3934269, at *3 (M.D.

Fla. Aug. 2, 2021), report and recommendation adopted, 2021 WL 3930507 (M.D. Fla.

Sept. 2, 2021). The Plaintiff is thus entitled to $7,985.27 in attorney’s fees.

B.

In addition to her fee request, the Plaintiff asks that she be permitted to recover

the $402 cost she incurred to initiate this action. (Doc. 22 at 4). The Commissioner

does not oppose this request either.

Numerous courts in this District have determined that filing fees are a

compensable cost under the EAJA. See, e.g., Tocco v. Comm’r of Soc. Sec., 2022 WL

16947863, at *2 (M.D. Fla. Nov. 14, 2022) (finding the claimant’s filing fee recoverable

under the Act), report and recommendation adopted, 2022 WL 16954494 (M.D. Fla. Nov.

15, 2022); Decardenas v. Acting Comm’r of Soc. Sec., 2022 WL 4125049, at *2 (M.D. Fla.

2 Mr. Berger represents that he spent 36.4 hours representing the Plaintiff before this Court but that,

“[t]hrough negotiation[s] with [the Commissioner],” his client agreed to reduce her request to 34.4

hours. (Doc. 22 at 3).

Aug. 9, 2022) (same); Perry v. Comm’r of Soc. Sec., 2020 WL 4193515, at *2 (M.D. Fla.

July 21, 2020) (same). That said, a number of courts have concluded that unlike

attorney’s fees and expenses, which are paid by the Social Security Administration,

filing fees and other such covered costs are “reimbursed from the judgment fund

administered by the Department of the Treasury.” Rosenthal v. Kijakazi, 2021 WL

4066820, at *1 (M.D. Fla. Aug. 17, 2021) (quoting Walker v. Astrue, 2010 WL 2572519,

at *1 (N.D. Fla. June 1, 2010), report and recommendation adopted, 2010 WL 2572517

(N.D. Fla. June 22, 2010)), report and recommendation adopted, 2021 WL 4060304 (M.D.

Fla. Sept. 7, 2021); see also Selby v. Kijakazi, 2022 WL 1205626, at *3 (N.D. Fla. Feb.

10, 2022), report and recommendation adopted, 2022 WL 1204129 (N.D. Fla. Apr. 22,

2022). Based upon these decisions, the Court finds that the Plaintiff is authorized to

recover the $402 filing fee from the judgment fund. See 31 U.S.C. § 1304.

III.

For the reasons set forth above, it is hereby ORDERED:

1. The Plaintiff’s unopposed motion for attorney’s fees and costs pursuant

to the EAJA (Doc. 22) is granted.

2. The Plaintiff shall be awarded attorney’s fees in the amount of $7,985.27.

In accordance with Astrue v. Ratliff, 560 U.S. 586, 598 (2010), the Commissioner’s

remittance of this sum shall be made payable to the Plaintiff. If the Commissioner

concludes that the Plaintiff does not owe any debt to the government, the

Commissioner may honor an assignment of fees to the Plaintiff’s lawyer.

3. The Plaintiff shall also be awarded costs in the amount of $402, which

sum shall be paid from the judgment fund pursuant to 31 U.S.C. § 1304.

SO ORDERED in Tampa, Florida, this 22nd day of December 2022.

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record