Carey v. Commissioner of Social Security

Filing 23

ORDER: Plaintiff John Carey's Petition for EAJA Fees Pursuant to 28 § U.S.C. 2312(d) 20 is GRANTED in the amount of $5,748.52. Signed by Judge Virginia M. Hernandez Covington on 4/16/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN CAREY,
Plaintiff,
v.

Case No.:

8:12-cv-2362-T-33EAJ

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_______________________________/
ORDER
This cause comes before the Court in consideration of
Plaintiff John Carey’s Petition for EAJA Fees Pursuant to 28
§ U.S.C. 2312(d) (Doc. # 20), filed on March 28, 2014, wherein
Plaintiff seeks an award of attorney fees in the amount of
$7,599.02 and paralegal fees in the amount of $12.00. On April
7, 2014, the Commissioner filed a response in opposition to
the

Petition

Commissioner

(Doc.
does

#

not

21),

explaining

oppose

the

that

award

of

although
a

the

reasonable

attorney fee in this case, the Commissioner finds the award
requested by Plaintiff to be excessive. For the reasons that
follow, the Court grants the Petition as modified herein.
A.

Eligibility for Award of Fees
The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,

requires an award of attorney fees and costs to any party

prevailing in litigation against the United States, including
proceedings

for

judicial

review

of

a

Social

Security

Administration Agency action, unless the Court determines
that the position of the United States was substantially
justified or that special circumstances exist and make an
award unjust. 28 U.S.C. § 2412(d)(1)(A).
Under the EAJA, a party may recover an award of attorney
fees against the government provided the party meets five
requirements:
prevailing

(1)

the

party

party;

(2)

the

seeking

the

application

award

for

such

is

the

fees,

including an itemized justification for the amount sought, is
timely filed; (3) the claimant had a net worth of less than
$2 million at the time the complaint was filed; (4) the
position of the government was not substantially justified;
and (5) there are no special circumstances which would make
an award unjust. See 28 U.S.C. § 2412(d)(1) and (2).
1.

Prevailing Party

The Judgment in this case reversed the final decision of
the

Commissioner

and

remanded

the

case

for

further

proceedings. (Doc. # 19). “[A] party who wins a sentence-four
remand order is a prevailing party.” Shalala v. Schaefer, 509

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U.S.

292,

302

(1993).

Thus,

Plaintiff

qualifies

as

the

prevailing party in this action.
2.

Timely Application

The

EAJA

requires

a

prevailing

party

to

file

an

application for attorney fees “within thirty days of final
judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). The thirty
day clock did not begin to run in this action until this
Court’s Judgment, entered on March 11, 2014 (Doc. # 19),
became final, which occurred at the end of the sixty day
period for appeal provided under Rule 4(a)(1)(B), Fed. R.
App. P. See Shalala, 509 U.S. at 302. Because Plaintiff’s
Petition, including an itemized justification for the amount
sought, was filed on March 28, 2014, it is found to be timely
filed.
3.

Claimant’s Net Worth

Plaintiff’s Petition asserts that “[Plaintiff’s] net
worth at the time this proceeding was filed was less than two
million dollars.” (Doc. # 20 at ¶ 9). The Commissioner does
not contest this fact. Accordingly, the Court finds this
requirement to be satisfied.
4.

Lack of Substantial Justification

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The burden of proving substantial justification is on
the government. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th
Cir. 1987). “Therefore, unless the Commissioner comes forth
and satisfies his burden, the government’s position will be
deemed not substantially justified.” Kimble ex rel. A.G.K. v.
Astrue, No. 6:11-cv-1063, 2012 WL 5877547, at *1 (M.D. Fla.
Nov. 20, 2012). According to Plaintiff, “The Commissioner’s
position at the administrative level and the District Court
level was not substantially justified.” (Doc. # 20 at ¶ 8).
In this case, the Commissioner does not dispute the issue of
substantial justification. Thus, the Court finds that the
government’s position was not substantially justified.
5.

No Special Circumstances

Finally, the Commissioner has not made a claim that any
special circumstances exist that countenance against the
awarding of attorney fees. Accordingly, the Court finds no
special circumstances indicating an award of attorney fees
would be unjust.
B.

Amount of Fees
Having determined Plaintiff is eligible for an award of

attorney fees under the EAJA, the Court now turns to the
reasonableness

of

the

amount
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of

attorney

fees

sought.

Plaintiff requests an award of $7,599.02 in attorney fees,
representing 40.8 hours of attorney time1 at an hourly rate
of $186.25. (Doc. # 20 at 14-15). Plaintiff also requests
paralegal fees in the amount of $12.00. (Id. at 15).
The amount of attorney fees to be awarded “shall be based
upon the prevailing market rates for the kind and quality of
the service furnished,” except that attorney fees shall not
exceed $125 per hour unless the Court determines 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 Court accepts
Plaintiff’s

contention

that

a

statutory

cost

of

living

adjustment in the hourly rate is appropriate.
However, the Commissioner opposes Plaintiff’s claimed
entitlement to compensation for 40.8 hours of attorney time,
as

she

contends

“excessive

or

Plaintiff’s

duplicative.”

request
(Doc.

for
#

EAJA

21).

fees

First,

is
the

Commissioner claims that the case at hand did not raise novel
or complex issues necessitating 40.8 hours of attorney time.

Plaintiff is represented by Carol Avard, Esq., who
expended 30.1 hours in this case, and is also represented by
Mark Zakhvatayev, Esq. who expended 8.4 hours in this case.
Both counsel expended 2.3 hours collectively in preparing the
present Petition. Plaintiff has filed an itemization of hours
for each attorney. (Doc. # 20 at 14-15).
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(Id. at 5). Furthermore, as Plaintiff’s counsel submits that
she has extensive experience in handling social security
cases, the Commissioner submits that 40.8 hours of time is
excessive

and

not

reasonable

under

the

circumstances.

(Id.)(citing to Surge v. Massanari, 155 F. Supp. 2d 1301,
1305 (M.D. Ala. 2001)(holding that an expenditure of 28.40
hours on a 15 page social security brief was excessive).
As a result, the Commissioner requests that this Court
order an overall reduction of 10 hours of attorney work.
(Id.)(citing Powell v. Colvin, No. 8:12-cv-2078-T-33TBM, 2013
WL 4781083 (M.D. Fla. Sept. 6, 2013)(reducing a request for
42.8 hours of attorney time by 17 hours where there were no
novel issues of law, plaintiff’s attorney was experienced,
and there was some redundancy of work)). The Commissioner
submits that the Court should apply the reduction pro rata to
each attorney’s work on the brief: reduction of 7.5 hours
from Attorney Avard’s 2013 time and 2.5 hours from Attorney
Zakhvatayev’s time.2
Moreover, the Commissioner requests this Court reduce
Plaintiff’s requested hourly rate for Attorney Avard for 2012

2

The Court notes that Plaintiff’s itemization of hours
worked for each attorney does not indicate what year Attorney
Zakhvatayev engaged in the hours claimed.
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from $186.25 per hour to $184.71. (Doc. # 21 at 6)(citing
Elliott v. Astrue, No. 2:12-cv-272-FTM-38, 2013 WL 6182112,
at *3 (M.D. Fla. Nov. 25, 2013)(finding that an appropriate
2012 EAJA hourly fee in southwest Florida is $184.71). The
Commissioner further requests that the hourly rate of $186.25
for Attorney Zakhvatayev be reduced as Attorney Zakhvatayev
has limited legal experience and it is unclear when Attorney
Zakhvatayev expended the 8.4 hours claimed. (Doc. # 21 at 6).
The Commissioner posits that Attorney Zakhvatayev’s hourly
rate should be reduced as the work he performed was more akin
to paralegal work, which is awarded a lower hourly rate. (Id.)
(citing Green v. Comm’r of Soc. Sec., No. 6:12-cv-357, 2013
WL 2297174, at *2; Bunn v. Comm’r of Soc. Sec., No. 6:12-cv1479-ACC-KRS, Doc. 32 at 3 n.3 (M.D. Fla. Mar. 19, 2014);
Diamond v. Colvin, No. 3:12-cv-983, 2014 WL 345701, at *3
(M.D.

Fla.

Jan.

30,

2014)).

Specifically,

Attorney

Zakhvatayev’s “Schedule of Hours” represents that his time
was spent reviewing the transcript and writing and reviewing
the

statement

of

facts.

(Id.).

Noteworthy,

however,

the

Commissioner does not oppose the requested paralegal fee of
$12.00.

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As noted by the Eleventh Circuit in American Civil
Liberties Union of Georgia v. Barnes, “it is as much the duty
of courts to see that excessive fees and expenses are not
awarded as it is to see that an adequate amount is awarded.”
168 F.3d 423, 428 (11th Cir. 1999). This Court agrees with
the Commissioner that 40.8 hours of attorney time is excessive
in this case. This case presented no novel issues of law
warranting such an extensive investment of time, especially
considering that Attorney Avard is an attorney experienced in
social security litigation.3 Therefore the Court finds that a
reduction of 10 hours (less than half of the time claimed to
prepare Plaintiff’s 17 page brief in this action) of attorney
time claimed is warranted under the circumstances of this
case. However, the Court declines to reduce the hourly rate
charged by Attorney Avard and Attorney Zakhvatayev in this
action as requested by the Commissioner.
Accordingly, the Court finds it appropriate to reduce
the requested fee award to $5,748.52, which represents a
reduction of 10 hours of attorney work at the rate of $186.25.4

3

Indeed, Attorney Avard indicates in support of the fee
motion that she has been practicing Social Security
disability law since 1981. (Doc. # 20 at 6).
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C.

Payment of Fees
The Supreme Court established in Astrue v. Ratliff, 130

S.Ct. 2521 (2010), that EAJA payments may be made directly to
a plaintiff’s attorney only in cases in which the plaintiff
does not owe a debt to the government and the plaintiff has
assigned the right to EAJA fees to her attorney. Accordingly,
Plaintiff does not request payment of the EAJA fees directly
to his counsel at this juncture but instead posits that:
[T]he parties agree that after the Court issues an
Order awarding EAJA fees to Plaintiff, the
Commissioner will determine whether Plaintiff owes
a debt to the government. If the U.S. Department
of the Treasury determines that Plaintiff does not
owe a federal debt, the government will accept
Plaintiff’s assignment of EAJA fees and pay fees
directly to Plaintiff’s counsel.
(Doc. # 20 at ¶ 13). As such, the Court will leave to the
parties the determination of to whom the fees shall be paid.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff John Carey’s Petition for EAJA Fees Pursuant
to 28 § U.S.C. 2312(d) (Doc. # 20) is GRANTED in the amount
of $5,748.52.

4

10 hours x 186.25 = $1,862.5 total reduction. $7,611.02
requested fee - $1,862.5 total reduction = $5,748.52 fee
award.
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DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of April, 2014.

Copies: All Counsel of Record

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