Foster v. Commissioner of Social Security

Filing 28

ORDER granting in part 25 the request for an attorney's fee under the EAJA, 27 as amended; awarding Foster $7,236.42 as an attorney's fee; and directing the clerk to enter judgment in favor of Foster and against the Commissioner of Social Security for $7,236.42 as an attorney's fee. Signed by Magistrate Judge Patricia D. Barksdale on 3/5/2025. (KG)

United States District Court
Middle District of Florida
Tampa Division
TYRONE FOSTER,
Plaintiff,
v.

NO. 8:23-cv-1396-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order
The Court reversed the decision of the Commissioner of Social Security
denying Tyrone Foster’s applications for benefits and, under sentence four of
42 U.S.C. § 405(g), remanded for further proceedings. Docs. 22, 23. Foster now
requests, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, an
award of $8,826.45 as an attorney’s fee. Doc. 25 (original motion), Doc. 27
(amended motion). The Commissioner has no opposition. Doc. 27 at 4.
In ruling on an EAJA request, a court must decide if the requesting party
is eligible and if the requested attorney’s fee is reasonable. Comm’r, I.N.S. v.
Jean, 496 U.S. 154, 160–61 (1990). A party is eligible if (1) he prevailed in a
case against the United States, (2) he timely requested a fee, (3) his net worth
did not exceed $2 million when he filed the case, (4) the United States’ position
was not substantially justified, and (5) no special circumstances would make
the award unjust. Id. at 158; 28 U.S.C. § 2412(d)(1) & (2).
The first three conditions are satisfied here. See Docs. 22, 25, 27. As to
the fourth condition, Foster contends the Commissioner’s position was not

substantially justified, Doc. 27 at 2, and the Commissioner has not tried to
satisfy his burden of showing otherwise. As to the fifth condition, no equitable
consideration is apparent or presented that would make an EAJA award
unjust.
For the attorney’s fee, the applicant must show the requested rates and
claimed hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984);
accord Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299, 1303 (11th
Cir. 1988). A fee award under the EAJA “shall be based upon prevailing market
rates for the kind and quality of the services furnished,” but it must not exceed
$125 an hour “unless the court determines that an increase in the cost of living
[since 1996, the date of the last amendment to the amount,] 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).
“The EAJA … establishes a two-step analysis for determining the
appropriate hourly rate to be applied in calculating attorney’s fees under the
Act.” Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992). “The first
step … is to determine the market rate for similar services provided by lawyers
of reasonably comparable skills, experience, and reputation.” Id. (internal
quotation marks omitted). “The second step, which is needed only if the market
rate is greater than [$125] per hour, is to determine whether the court should
adjust the hourly fee upward from [$125] to take into account an increase in
the cost of living [since 1996], or a special factor.” Id. at 1033–34.
Here, the fee request is based on 33 hours of work in 2023 and 3 hours
of work in 2024 by Foster’s lawyers, Carol Avard and Mark Zakhvatayev. See
Doc. 27-1 at 18–20. For work completed in 2023, Foster requests an hourly rate
of $244.62. Doc. 27 at 3. For work completed in 2024, Foster requests an hourly
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rate of $251.33. Doc. 27 at 3. The hours multiplied by the rates equals
$8,826.45. Doc. 27-1 at 18–20.
The requested rates are reasonable. Based on the Court’s own knowledge
and the information provided about the lawyers, see Doc. 27-1 at 1–9; Doc. 274, the rates are within the prevailing market rates for services provided by
lawyers of reasonably comparable skills, experience, and reputation as Avard
and Zakhvatayev. The increased cost of living from March 1996 to the time the
lawyers worked on the case justifies an upward adjustment from $125. See U.S.
DOL, Bureau of Labor Stats., https://data.bls.gov/timeseries/CUUR0000SA0
(last visited March 4, 2025).
The Court allowed Foster to file an amended motion to attempt to satisfy
his burden of showing that the time spent by both Avard and Zakhvatayev
reflects the distinct contribution of each lawyer to the case and is customary
practice. Doc. 26. The Court explained:
“Redundant hours generally occur where more than one attorney
represents a client.” [Norman, 836 F.2d at 1301?02]. “There is nothing
inherently unreasonable about a client having multiple attorneys, and
they may all be compensated if they are not unreasonably doing the
same work and are being compensated for the distinct contribution of
each lawyer.” Id. at 1302. “For that reason, reduction for redundant
hours is warranted only if the attorneys are unreasonably doing the
same work.” ACLU of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir.
1999) (internal quotation marks and quoted authority omitted). “Thus,
a fee applicant is entitled to recover for the hours of multiple attorneys
if he satisfies his burden of showing that the time spent by those
attorneys reflects the distinct contribution of each lawyer to the case and
is the customary practice of multiple-lawyer litigation.” Id. (emphasis
added)

Doc. 26 at 1?2.

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Through the amended motion and itemized hours, Doc. 27, Doc. 27-1 at
18–20, Foster satisfies his burden of showing the hours by Zakhvatayev were
reasonably expended. None of the work appears clerical, secretarial,
unnecessary, or otherwise excludable. Foster, however, fails to satisfy his
burden regarding the time spent by Avard. Foster fails to explain Avard’s
distinct contribution; why two lawyers, each with vast social security
experience, worked on the case; why the original description of Avard’s work
(“Researching, taking notes and setting for the arguments in the brief”) differs
from the most recent description of her work (“Proof-reading the draft of
Attorney Zakhvatayev’s brief[,] Identifying additional issues[,] Reviewing the
transcript and taking notes[, and] Research and Shepardizing”), compare Doc.
25-1 at 18 with Doc. 27-1 at 18; and that their way of staffing the case is the
“customary practice.”
The Court leaves to the Commissioner’s discretion whether to accept
Foster’s assignment of the EAJA fee, see Doc. 27-2, after determining whether
Foster owes a federal debt.
The Court grants in part the motion, Doc. 25, as amended, Doc. 27;
awards Foster $7,236.42 as an attorney’s fee; and directs the clerk to enter
judgment in favor of Tyrone Foster and against the Commissioner of Social
Security for $7,236.42 as an attorney’s fee.
Ordered in Jacksonville, Florida, on March 5, 2025.

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