Joyner et al v. Commissioner of Social Security

Filing 21

ORDER granting in part and denying in part 19 Motion for attorney fees under the Equal Access to Justict Act. See order for details and directions to Clerk. Signed by Magistrate Judge Thomas E. Morris on 11/16/2011. (DLC)

8UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FELICIA JOYNER,
Plaintiff,
vs.

CASE NO. 3:10-cv-255-J-TEM

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
__________________________________
ORDER
This case is before the Court on Plaintiff's Petition for Attorney Fees (Doc. #19,
Petition), filed October 20, 2011. Plaintiff’s counsel requests an award of $3,498 in
attorney fees pursuant to the Equal Access to Justice Act (hereinafter referred to as EAJA).
Plaintiff advised Defendant does not have an objection to the relief sought (Doc. #19, ¶ 9).
Defendant did, however, file a response to the Petition (see Doc. #20), in which the
Commissioner stated the caveat there was no opposition to the sought relief, “provided this
is the only petition filed by Plaintiff in this case under 28 U.S.C. § 2412(d)” (Doc. #20 at 1).
The Court has reviewed and considered the positions of both parties.
Based upon a review of the information contained within the record, the Court makes
the following legal and factual findings:
1.

Attorney fees are authorized in this action because Plaintiff, having obtained

a sentence for remand/reversal of a denial of benefits, is a “prevailing party,” Shalala v.
Schaefer, 509 U.S. 292, 300-02 (1993), and the Commissioner failed to apply the proper
legal standards in evaluating the case. Therefore, the Commissioner’s position here was

not substantially justified. Moreover, Plaintiff filed a timely application for attorney fees.
Plaintiff expressly states “Plaintiff’s net worth at the time this proceeding was filed was less
than two million dollars”, and there are no special circumstances which would make the
award unjust (Doc. #19, ¶ 7)). See also 28 U.S.C. § 2412(d); Commissioner, I.N.S. v.
Jean, 496 U.S. 154, 158 (1990).
2.

The amount of attorney fees to be awarded "shall be based upon prevailing

market rates for the kind and quality of the services furnished," except that attorney fees
shall not exceed $125 per hour unless the Court determines that an increase in the cost
of living or a “special factor” justifies a higher fee award. 28 U.S.C. § 2412(d)(2)(A). The
awarded fee may not exceed twenty-five percent of the claimant's past due benefits. 42
U.S.C. § 406(b)(1)(A). There is no contention here that the claimed fee would exceed that
amount.
It has been recognized that the EAJA allows for an adjustment due to changes in
the cost of living, though such a change is not absolutely required. Barber v. Sullivan, 751
F. Supp. 1542, 1544 (S.D. Ga. 1990) (citing Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir.
1988). Baker is also cited for the proposition that attorney fee increases do not necessarily
have to follow the Cost of Living Index for a specific geographical area and that the decision
as to whether attorney fees shall exceed the statutory cap rests entirely within the Court’s
discretion. Id. Plaintiff's counsel requests an enhancement of the statutory fee rate of $125
per hour based upon the cost of living increases since Congress set the amount in March
1996 as part of the Contract with America Advancement Act of 1996, Pub. L. No. 104- 121,
§§ 231-33 as codified in 28 U.S.C. § 2412(d)(2)(A).

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Plaintiff's counsel argues that the statutory cap of $125 should be raised to $165 per
hour for services provided in 2010 and 2011 (Doc. #19 at 7). The Court in its discretion has
determined that this hourly rate is reasonable when factoring in the Consumer Price Index
as a guide for Florida attorneys to be compensated under the EAJA.1
3.

The Court’s review must consider not only the reasonableness of the

requested hourly rate for attorney fees, but also whether the number of hours claimed for
attorney fees under the EAJA were reasonably expended. See Hensley v. Eckerhart, 461
U.S. 424, 434 (1983); Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292,
1301 (11th Cir. 1988). In this instance, the Court has discovered a discrepancy in Plaintiff’s
request for compensation for services rendered that are not reflected in the Court record.
More specifically, counsel has included one-half (.5 ) of a billing hour for preparation of an
affidavit of indigency and letter to client, and review of the completed affidavit of indigency
on March 22 and March 24, 2010 (see Doc. #19 at 9). Also on March 24, 2010, counsel
has included one-half (.5) of a billing hour for preparation of “forms; Letter to Clerk filing
Complaint; copy of letter and forms to client.” Id. The record in this case reflects the filing
fee was paid with the filing of the complaint (see Docket Entry note associated with Doc.
#1, Complaint). There is no indication in the record that Plaintiff filed an affidavit of
indigency seeking in forma pauperis status. Without a billing record that affirmatively
reflects a decision not to file an affidavit of indigency, the Court declines to credit the one-

1

The Court arrived at its conclusions after visiting the following website:
www.minneapolisfed.org (last visited November 16, 2011). The Court refers to this public
website for informational purposes only. The Court accepts no responsibility for and does
not endorse any content found at this website. Furthermore, the Court’s opinion is not
affected should this website cease to be available in the future.
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half hour for preparation of review of same as time reasonably expended by the attorney,
and thus compensable under the EAJA, in this case. See Norman v. Housing Authority of
City of Montgomery, 836 F.2d at 1301. Thus, the Court will deduct .5 hours from the
number of hours for which Plaintiff seeks an EAJA award, finding twenty and seven tenths
(20.7) hours were reasonably expended by Plaintiff’s counsel in this federal litigation.
4.

In light of Astrue v. Ratliff, 130 S.Ct. 2521, 2528-29 (2010) (establishing that

any award of attorney fees under the EAJA is subject to offset by the government of any
debt owed by the plaintiff to the United States), this Court finds it a better practice to award
the EAJA fees directly to Plaintiff as the prevailing party and remain silent regarding the
direction of payment of those fees. It is not the duty of the Court to determine whether
Plaintiff owes a debt to the government that may be satisfied, in whole or in part, from the
EAJA fees award. Thus, the Court leaves it to the discretion of the government to accept
Plaintiff’s assignment of EAJA Fees and pay fees directly to Plaintiff counsel after a
determination that Plaintiff does not owe a federal debt (see Doc. #19 , ¶ 10).
5.

The Court thus finds that $3,415.50 ($165 x 20.7 hours) is a reasonable

amount for attorney fees in this case.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff's Petition for Attorney’s Fees (Doc. #19), is GRANTED to the extent

set forth above..
2.

The Clerk shall enter judgment in favor of Plaintiff and against Defendant in

the amount of $3,415.50 for attorney fees.

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DONE AND ORDERED at Jacksonville, Florida this 16th day of November, 2011.

Copies to all counsel of record

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