Wood v. Commissioner of Social Security

Filing 35

OPINION AND ORDER granting in part and denying in part 30 Motion for Attorney Fees. Attorney fees in the amount of $3,458.85 are hereby awarded to plaintiff, and may be paid directly to counsel if the United States Department of Treasury determines that no federal debt is owed. The Clerk shall enter judgment accordingly. Signed by Judge John E. Steele on 5/26/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TAMARA LEE WOOD,
Plaintiff,
v.

Case No: 2:15-cv-437-FtM-29CM

COMMISSIONER
SECURITY,

OF

SOCIAL

Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Attorney's Fees Pursuant to the Equal Access to Justice Act, 28
U.S.C.

2412

(Doc.

#30)

filed

on

November

28,

2016.

The

Commissioner filed an Opposition to Plaintiff’s Motion (Doc. #31)
on December 9, 2016.

With leave of Court, plaintiff filed a Reply

(Doc. #34) on December 16, 2016.

Plaintiff seeks attorney’s fees

in the amount of $3,822.45 under the authority of 28 U.S.C. § 2412.
“[E]ligibility for a fee award in any civil action requires:
(1) that the claimant be a “prevailing party”; (2) that the
Government's position was not “substantially justified”; (3) that
no “special circumstances make an award unjust”; and, (4) pursuant
to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted
to the court within 30 days of final judgment in the action and be
supported by an itemized statement.”
U.S. 154, 158 (1990).

Comm'r, INS v. Jean, 496

A. Prevailing Status
Plaintiff initiated her Complaint (Doc. #1) on May 18, 2015,
in the Western District of Michigan (Southern Division) through
Michigan counsel, Mr. Paul J. Whiting, III.

Upon motion by the

Commissioner, the case was transferred to the Middle District of
Florida as plaintiff resides in Charlotte County, Florida.
## 5-6.)

(Docs.

On November 30, 2015, attorney Suzanne Lynn Harris

entered an appearance on behalf of plaintiff as new counsel of
record.

(Doc. #19.)

On September 15, 2016, the Court issued an Opinion and Order
(Doc. #26) overruling the objection of the Commissioner, and
adopting the Report and Recommendation (Doc. #24) of the Magistrate
Judge.

The Decision of the Commissioner of Social Security was

reversed and the matter remanded pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings.
issued on September 19, 2016.

Judgment (Doc. #27) was

The Court finds that plaintiff was

the prevailing party in this litigation, that the motion was timely
filed, and that the Commissioner’s position was not substantially
justified.
The Court further finds that plaintiff’s net worth was less
than two million dollars at all relevant times.

(Doc. #30-10.)

The Commissioner does not object to plaintiff’s prevailing party
status, or financial eligibility.

Further, the Court finds no

special circumstances warranting a denial of the fee application.

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B. Amount of Attorney’s Fees
A reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The party seeking

an award of fees should submit adequate documentation of hours and
rates in support, or the award may be reduced.

Id.

In determining

the reasonable amount of hours, the Court may conduct an hour-byhour analysis or it may reduce the requested hours across the
board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.
2008), and the Court must eliminate excessive, unnecessary, and
redundant hours, Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1301-02 (11th Cir. 1988).

A “reasonable hourly rate” is

“the prevailing market rate in the relevant legal community for
similar

services

by

lawyers

of

experience, and reputation.”

reasonably

comparable

skills,

Norman, 836 F.2d at 1299.

The

burden is on the fee applicant “to produce satisfactory evidence”
that the rate is in line with those prevailing in the community.
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).

The prevailing

market is the Fort Myers Division of the Middle District of
Florida.

Olesen-Frayne v. Olesen, 2:09-CV-49-FTM-29DNF, 2009 WL

3048451, *2 (M.D. Fla. Sept. 21, 2009).
The

Commissioner

opposes

the

motion

for

three

reasons,

arguing: (1) that a paralegal hourly rate should be applied for
hours expended by attorney Alyssa Van Auken prior to her pro hac

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vice admission to practice before the Middle District of Florida
was granted; (2) that clerical tasks are included, and should not
be compensated at the requested paralegal rate; and (3) that the
number of hours requested to prepare the EAJA petition for fees
are excessive.
1. Attorney Van Auken’s Admission to Practice
On November 14, 2016, attorney Alyssa Van Auken filed a motion
to appear pro hac vice, and the motion was granted the next day.
(Docs. ## 28-29.)

Attorney Alyssa Van Auken electronically filed

the motion seeking attorney fees.

The Commissioner opposes the

attorney hourly rate for work performed by attorney Alyssa Van
Auken because she was not a member of the Middle District Bar
during the time period when the work was actually performed (August
17, 2016 through November 15, 2016), and attorney Van Auken did
not apply for pro hac vice admission until November 14, 2016.
Plaintiff argues that compensation for attorney Van Auken “at a
paralegal rate after she has undergone the procedure and cost of
being admitted pro hac vice, at any point in the case, is against
the interest of justice and discouraging to out-of-state attorneys
to seek even pro hac admission to this Court in order to represent
claimants.”

(Doc. #34, p. 2.)

Under Local Rule 2.02, “[a]ny attorney who is not a resident
of Florida but who is a member in good standing of the bar of any
District Court of the United States; outside Florida; may appear

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specially

as

counsel

of

record;

without

formal

or

general

admission; provided, however, such privilege is not abused by
appearances in separate cases to such a degree as to constitute
the maintenance of a regular practice of law in Florida. . . .”
M.D. Fla. R. 2.02(a).

“A district court may adopt local rules

governing its practice, provided they are consistent with federal
law and the federal rules of procedure, evidence, and bankruptcy.”
Zech v. Comm'r of Soc. Sec.,

F. App’x

, No. 16-11292, 2017

WL 711015, at *1 (11th Cir. Feb. 23, 2017) (citing Fed. R. Civ. P.
83(a)).

The Eleventh Circuit has found that it is not an abuse

of discretion to deny or strike a fee application by counsel who
files without admission under the district court’s Local Rules.
Abdelgalel v. U.S. Atty. Gen., 443 F. App'x 458 (11th Cir. 2011).
The Court is not persuaded by plaintiff’s argument that outof-state counsel would be discouraged from appearing.

Rather, the

Court agrees with the sound reasoning in Flournah that denying
fees “incentivizes attorneys to comply with Rule 2.02 at the time
they work on a case, rather than apply[ing] the wait-and-see
approach” for a favorable judgment.”

Flournah v. Comm’r of Soc.

Sec., 2:15-cv-234-FTM-DNF, Doc. #32, p. 4 (M.D. Fla. Feb. 27,
2017).

The Court will deny attorney Van Auken fees at the

requested attorney rate, but will allow compensation at a paralegal
rate for hours reasonably expended in this case, consistent with

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other cases applying a paralegal rate in cases where admission was
never sought. 1
2. Clerical Tasks
The Commissioner argues that certain tasks performed by the
paralegals are clerical in nature, and therefore the following
hours should not be awarded:
11/30/2015

11/30/2015

12/15/2015

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(Doc. #31, p. 6.)

0.6
hours

Persse, Shannon

0.3
hours

Smith, Michael P.

0.5
hours

Smith Michael P.

Although the Court finds that plaintiff took

every effort to not charge for many of the clerical entries, the
Court rejects plaintiff’s reasoning that the “technical skill”
required to complete these specific tasks requires an attorney or
paralegal’s time.

These 1.4 hours will be eliminated.

The Court

will also reduce the 1.2 hours on November 15, 2016, for Shannon
Persse

to

“Ready

EAJA

Narrative,

1

Time

Slips,

Exhibits,

See Wylie v. Comm’r of Soc. Sec., 6:16-cv-819-Orl-DCI, Doc.
#29, p. 6 (M.D. Fla. May 11, 2017); Bumgardner v. Colvin, 6:12cv-18-Orl-31TBS, Doc. #32, p. 6 (M.D. Fla. Oct. 2, 2014); Riggins
v. Astrue, Case No. 3:09-cv-856-J-TEM, 2011 WL 2119338 (M.D. Fla.
May 27, 2011).

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Certificate. File Per Local Rule” to 0.8 hours as the Court finds
that the entry includes clerical tasks.
3. Excessive Hours
The Commissioner argues that the number of hours expended to
prepare and review the EAJA motion for fees is excessive, and that
the requested 3.6 hours to prepare and review the motion should be
reduced to a total of 2 paralegal hours.

The Court finds that 3.6

hours is not an unreasonable amount of hours, and the Court will
allow the hours, except as to the clerical hours reduced above.
4. Total Fees
Plaintiff seeks a rate of $75.00 an hour for counsel acting
as paralegals 2 and for paralegals.

As $75.00

is the normal

reasonable rate in the Division for paralegals, the Court will
apply it to work performed by the paralegals, and attorney Van
Auken for the reasons stated above.

The rate of $189.30 for

attorney Suzanne Harris is also reasonable, and the Commissioner
does not contest the attorney fee rate.

The Court will apply this

rate.

2

Plaintiff indicated that the paralegal rate was being sought
until Zech was decided. On February 23, 2017, the Eleventh Circuit
affirmed the district court’s decision to compensate attorneys at
a paralegal hourly rate. See Zech v. Comm'r of Soc. Sec.,
F.
App’x
, 2017 WL 711015 (11th Cir. Feb. 23, 2017).

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Plaintiff seeks a total of $3,822.45, which amount will be
reduced as to attorney Van Auken’s rate, and to eliminate the
clerical tasks discussed above.
Attorney/Paralegal
Suzanne Harris
Alyssa Van Auken
Mike S. Korby
Shekeba Morrad
Shannon Persse
Michelle Callahan
Michael Smith
TOTAL

Fees will be granted as follows:

Hourly Rate
$189.30
$ 75.00
$ 75.00
$ 75.00
$ 75.00
$ 75.00
$ 75.00

Hours
7.00
2.00
7.55
13.60
2.6
2.10
0.6
35.45

TOTAL
$1,325.10
$ 150.00
$ 566.25
$1,020.00
$ 195.00
$ 157.50
$
45.00
$3,458.85

C. Waiver of Direct Payment
Counsel for plaintiff has attached an Affirmation and Waiver
of Direct Payment of EAJA Fees (Doc. #30-10) executed by plaintiff
and providing for payment directly to counsel.

In Astrue v.

Ratliff, 560 U.S. 586, 594 (2010), the United States Supreme Court
affirmed the line of cases finding that EAJA fees are payable to
litigants, not counsel, and therefore are subject to offset where
a litigant has outstanding federal debts.
the

waiver

of

direct

payment

subject

The Court will accept
to

the

United

States

Department of Treasury’s determination that no federal debt is
owed.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion for Attorney's Fees Pursuant to the
Equal Access to Justice Act, 28 U.S.C. 2412 (Doc. #30) is
GRANTED in part.

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2. Attorney fees in the amount of $3,458.85 are hereby awarded
to plaintiff, and may be paid directly to counsel if the
United States Department of Treasury determines that no
federal debt is owed.
3. The Clerk shall enter judgment accordingly.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2017.

Copies:
Counsel of Record

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26th

day