Espino v. Commissioner of Social Security

Filing 29

ORDER granting in part and denying in part 27 Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 11/2/2015. (JMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JEANNIE ESPINO,
Plaintiff,
v.

Case No: 6:14-cv-1185-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees Pursuant to
the Equal Access to Justice Act (“EAJA”) (Doc. 27) and Defendant’s Opposition to
Plaintiff’s Motion for Attorney Fees (Doc. 28). For the reasons that follow, Plaintiff’s
motion is GRANTED in part and DENIED in part.
On August 24, 2015, the Court entered an order reversing the Commissioner’s
final decision and remanding this case for further proceedings pursuant to sentence four
of 42 U.S.C. § 405(g) (Doc. 23). The Clerk entered judgment the following day
(Doc. 24). Plaintiff now requests an award of attorney fees in the amount of $7,363.33,
payable to her attorney, and an award of expenses in the amount of $37.64 pursuant to
the EAJA, 28 U.S.C. § 2412(d).
Under the EAJA, a party is eligible for an award of attorney’s fees where: (1) the
party is a prevailing party in a non-tort suit involving the United States; (2) the
Government’s position was not substantially justified; (3) the party filed a timely
application for attorney’s fees; (4) the party had a net worth of less than $2 million at the
time the complaint was filed; and (5) there are no special circumstances which would

make the award of fees unjust. 28 U.S.C. § 2412(d). “The Commissioner concedes
Plaintiff is the prevailing party, that she timely filed a petition for attorney fees under
EAJA, and that the Commissioner’s position in the litigation was not substantially
justified.” (Doc. 28, p. 3). The Commissioner opposes Plaintiff’s motion “because it
seeks compensation for an excessive number of hours and fails to substantiate it’s [sic]
claim for compensation for paralegal work.” (Id. at p. 1). The Commissioner also
requests that any amount awarded be payable directly to Plaintiff (Id.).
Plaintiff’s requested fee award of $7,363.33 consists of $6,628.33 for 35 hours of
attorney time compensated at the rate of $189.38 per hour1 and $735 for 9.8 hours of
paralegal time compensated at the rate of $75 per hour (Doc. 27-1, ¶¶ 5-7). The
Commissioner argues that Plaintiff’s fee award should be reduced because counsel
should not receive compensation for time spent on clerical tasks, Plaintiff spent excessive
time on routine tasks, Plaintiff spent an excessive amount of time preparing her EAJA
petition, and she “provided no evidence as to the prevailing market rate or skills,
experience, or reputation of the paralegals involved with the case.” (Doc. 28, pp. 3-8).
“Prevailing plaintiff's attorneys ʻmust exercise their own billing judgment to exclude
any hours that are excessive, redundant, or otherwise unnecessary.’” Galdames v. N &
D Inv. Corp., 432 F. App'x 801, 806 (11th Cir. 2011) (quoting Resolution Trust Corp. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir. 1993)). “Attorneys may bill
adversaries for only the same hours they would bill a client.” Id. (citing Resolution Trust
Corp., 996 F.2d at 1150). “Similarly, ʻa court may reduce excessive, redundant or
otherwise unnecessary hours in the exercise of billing judgment.’” Id. (quoting Perkins v.

1

35 hours compensated at $189.38 per hour is actually $6,628.30, not $6,628.33.

-2-

Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988) (emphasis omitted)). “If the court
concludes that the number of claimed hours is excessive, it may engage in ‘an acrossthe-board cut,’ so long as it provides adequate explanation for the decrease.” Id.
(quoting Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
After reviewing the parties’ papers, the Court finds that Plaintiff’s counsel is
seeking compensation for an unreasonable number of hours and for tasks that are not
billable to the Commissioner. Counsel billed 44.8 hours for work performed by five
different attorneys and five different paralegals. Counsel spent no less than 29.8 hours
to review the record and prepare their brief. Considering Plaintiff’s brief, the length of the
record, and that Plaintiff did not raise any novel issues, 29.8 hours to prepare the brief is
excessive. This is due in part to Plaintiff’s five attorneys using multiple levels of review,
which resulted in excessive and redundant hours. Plaintiff is also seeking attorney and
paralegal time for tasks that should not be billed to the Commissioner. Plaintiff’s counsel
has requested time for reviewing the Local Rules, even though counsel is expected to be
familiar with the rules. See M.D. FLA. R. 2.01(b), 2.02(c). Plaintiff’s counsel also seeks
compensation for a significant number of attorney and paralegal hours for tasks of a
clerical nature, such as “Review Summons Issued,” “Call to Clerk to confirm Summons
were sent to Marshall for service,” “Download / Combine and OCR Transcript, live
bookmark,” and “Download, file and save Corrected transcript in parts,” which are not
compensable as attorney fees. See e.g., Ward v. Astrue, No. 3:11-CV-523-J-TEM, 2012
WL 1820578, at *3 (M.D. Fla. May 18, 2012); Gates v. Barnhart, 325 F. Supp. 2d 1342,
1348 (M.D. Fla. 2002); Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000).
Under these circumstances, an across-the-board cut is appropriate. The Court finds that

-3-

Plaintiff’s counsel’s requested fee award of $7,363.33 should be reduced by 35 percent to
$4,786.16, which is reasonable compensation for the work performed.
Plaintiff seeks an award of costs in the amount of $37.64 for “FedEx Shipping of
the complaint to the clerk’s office.” (Docs. 27, p. 1; 27-1, p. 2). Aside from requesting
an award of expenses for shipping the complaint via FedEx, Plaintiff has not provided any
basis for the Court to conclude that the FedEx charges were both necessary and
reasonable. See Dempsey v. Colvin, No. 1:09CV790-SRW, 2013 WL 3280319, at *3
(M.D. Ala. June 27, 2013) (citing Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988) aff'd
sub nom. Comm'r, I.N.S. v. Jean, 496 U.S. 154 (1990)). Accordingly, the Court will
disallow the FedEx charges.
Finally, Plaintiff requests that fees be made payable to her attorney if “the Plaintff
has no debt registered with the Department of Treasury subject to offset.” (Doc. 27, p.
1). In Astrue v. Ratliff, 560 U.S. 586 (2010), the Supreme Court held that an award of
EAJA fees belongs to the plaintiff, not her attorney, and is therefore, subject to offset to
satisfy any pre-existing debt owed by plaintiff to the government.

Id. at 2524. The

Ratliff court implicitly approved the Commissioner's practice of issuing payments directly to
a plaintiff's attorney only in cases where the plaintiff does not owe a debt to the
government and the plaintiff has assigned the right to such fees to the attorney.
2529.

Id. at

Because EAJA awards are against the United States, any assignment must

satisfy the Anti-Assignment Act, which provides in part:
An assignment may be made only after a claim is allowed, the amount of
the claim is decided, and a warrant for payment of the claim has been
issued. The assignment shall specify the warrant, must be made freely,
and must be attested to by 2 witnesses. The person making the
assignment shall acknowledge it before an official who may acknowledge a
deed, and the official shall certify the assignment. The certificate shall
state that the official completely explained the assignment when it was

-4-

acknowledged. An assignment under this subsection is valid for any
purpose.
31 U.S.C.A. § 3727(b).
The “Affidavit and Waiver of Direct Payment of EAJA Fees” between Plaintiff and
her counsel does not satisfy the Anti-Assignment Act. The waiver was executed before
the Court determined to allow an EAJA award, it lacks two witness signatures, and it does
not mention a warrant for payment. The Commissioner has also not waived the
requirements of the Anti-Assignment Act (Doc. 28, p. 8). Accordingly, the fee award
shall be paid directly to Plaintiff.
Upon due consideration, Plaintiff’s motion (Doc. 27) is GRANTED in part and
DENIED in part. Plaintiff is AWARDED attorney fees in the amount of $4,786.16, made
payable to Plaintiff.
DONE and ORDERED in Orlando, Florida on November 2, 2015.

Copies furnished to Counsel of Record

-5-