Gates v. Barnhart

• Decision Date: 25 June 2002
• Docket Number: No. 5:01-CV-148-OC-GRJ.,5:01-CV-148-OC-GRJ.
• Citation: 325 F.Supp.2d 1342
• Parties: Roy T. GATES, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Florida

325 F.Supp.2d 1342

Roy T. GATES, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. 5:01-CV-148-OC-GRJ.

United States District Court, M.D. Florida. Ocala Division.

June 25, 2002.

J.W. Chalkley, III, Chalkley, Crooke & Smith, Ocala, FL, for Roy T. Gates, plaintiffs.

Susan R. Waldron, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, Mary Ann Sloan, General Counsel's Office, Social Security Administration, Dennis R. Williams, General Counsel's Office, Social Security Administration, Atlanta, GA, for Larry G. Massanari, Acting Commissioner of Social Security, Commissioner of Social Security, defendants.

ORDER

JONES, United States Magistrate Judge.

This cause comes before the Court for consideration of Plaintiff's Application For An Attorney's Fee Under The Equal Access To Justice Act (Doc. 18), accompanied by affidavits of Plaintiff's counsel and Plaintiff (Doc. 20), and a memorandum of law in support of the application, with itemization of time and expenses (Doc. 19). Also before the Court is the Commissioner's memorandum in opposition to Plaintiff's application (Doc. 21). Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), Plaintiff requests an award of fees in the amount of $5,090.00, plus costs of $218.14, to be paid to Plaintiff's counsel.

I. Eligibility For Award Under EAJA

To be timely, an application for fees and other expenses under the EAJA must be filed within thirty (30) days of the "final judgment" in the action, which is defined as a judgment that is "final and not appealable."¹ According to the Federal Rules of Appellate Procedure, the Commissioner of Social Security has sixty (60) days in which to appeal,² after which a judgment becomes final. Thus, the plaintiff in a Social Security case has thirty (30) days beyond this sixty (60) day period in which to apply for fees and other expenses under the EAJA, i.e., a total of ninety (90) days. In this case, the Order reversing and remanding the case was entered on May 7, 2002, and Plaintiff's application was filed on May 31, 2002. Thus, Plaintiff's application was timely filed.

In addition, Plaintiff's application asserts that he is the prevailing party in this litigation, that the Commissioner's position in the underlying action was not substantially justified, and that Plaintiff's net worth at the time the proceeding was filed was less than two million dollars.³ The Commissioner does not contest these assertions. Therefore, the Court finds that Plaintiff is eligible for an award of fees and costs under the EAJA.

II. Amount Of Fees And Costs To Be Awarded

Plaintiff requests fees for 25.45 hours of attorney work at the rate of $200.00 per hour, for a total of $5,090.00 in attorney's fees. Plaintiff also requests costs of $218.14, comprised of $150.00 for the filing fee and $68.14 for copying and certified mailing charges.

In making determinations about the reasonableness of attorney's fees claimed under the EAJA, courts must consider two components: (1) the hourly rate to be awarded; and (2) the amount of hours to be compensated. The Court will address each of these components in turn, and then will address the reasonableness of the costs claimed by Plaintiff.

A. Hourly Rate

For purposes of setting reasonable attorney fees, the EAJA provides as follows:

The amount of fees awarded under [28 U.S.C. § 2412(d)] shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.⁴

Thus, the EAJA establishes a ceiling for attorney's fees of $125 per hour, which may be adjusted for cost of living increases or a "special factor."

In Meyer v. Sullivan,⁵ the Eleventh Circuit held that the EAJA establishes a two-step analysis for determining the appropriate hourly rate to be used in calculating attorney's fees under the EAJA.⁶ The first step in the analysis is to determine the prevailing market rate for the kind and quality of services furnished.⁷ The second step, which is necessary only if the prevailing market rate is greater than the statutory ceiling ($125 per hour), is to determine whether the court should adjust the hourly rate upward from the ceiling to take into account an increase in the cost of living or a special factor.⁸ The fee applicant bears the burden of producing satisfactory evidence — in addition to the attorney's affidavit — that the requested rate is in line with those prevailing in the community for similar services by attorneys of reasonably comparable skill, experience, and reputation.⁹

Plaintiff requests that the Court award Plaintiff's counsel $200 per hour based on cost of living increases and Plaintiff's counsel's "specialized knowledge and experience." In support of this request, Plaintiff directs the Court's attention to an order of this Court in another Social Security appeal,¹⁰ in which the Court awarded Plaintiff's counsel $200 per hour. The Court observes, however, that in the cited case — unlike in the instant case — the Commissioner failed to respond to the plaintiff's application for attorney's fees, leaving the plaintiff's request for $200 per hour uncontested. This crucial distinction makes the cited case inapposite.

Plaintiff also directs the Court's attention to an order by another court in this district, in which the court found that the prevailing market rate for attorneys in Social Security appeals was $125 to $300 per hour.¹¹ The Court observes at least two important distinctions between the cited case and the instant case. First, our sister court was evaluating the Tampa legal market, not the North Central Florida legal market. Obviously, Tampa is a large metropolitan area with a higher cost of living than the rural North Central Florida area. Thus, the rates charged by attorneys in Tampa are likely to be higher than those charged by attorneys practicing in this Court's jurisdiction. Second, while our sister court found that the upper end of the Tampa market was $300 per hour, the court actually awarded only $125 per hour.¹² Therefore, the Court finds that the cited case does not support Plaintiff's request for $200 per hour.

Having determined that Plaintiff has failed to produce satisfactory evidence that the requested rate of $200 per hour is in line with those prevailing in this area for similar services by attorneys of reasonably comparable skill, experience, and reputation, the Court must rely on its own experience and knowledge in determining the prevailing market rate. Based on the Court's experience in other Social Security cases filed in this Court, and the Court's knowledge of the North Central Florida legal market, the Court finds that, during the period applicable to this appeal, the prevailing market rate for the kind and quality of services furnished by attorneys of reasonably comparable skill, experience, and reputation in the North Central Florida area was $125 to $150 per hour.

Because the Court finds that the prevailing market rate exceeds the statutory ceiling, the Court is authorized to adjust the statutory ceiling to take into account an increase in the cost of living.¹³ When making such an adjustment, there are two computational issues that courts are confronted with: (1) what cost-of-living index to use; and (2) what period of time to use to compare to the base period (i.e., March 1996, when 28 U.S.C. § 2412(d) was amended and the statutory ceiling was set at $125 per hour).

With regard to the first of these issues, there appears to be widespread agreement that the appropriate series of indexes is the Consumer Price Index for All Urban Consumers ("CPI-U"), U.S. City Average. The issue that has arisen, however, is whether to use the broadest index in this series, the CPI-U "all items" index, or instead to use CPI-U subcategory indexes such as those for "personal expenses" or "legal services." The Eleventh Circuit has not dealt with this issue. However, every circuit court that has addressed this issue has concluded that the CPI-U "all items" index is the appropriate index for calculating cost-of-living adjustments under the EAJA.¹⁴

The CPI-U "all items" index, which is commonly known as the "Cost of Living Index," is a broad index that measures the average change in prices over time of a representative "market basket" of goods and services.¹⁵ As such, courts have reasoned that it is the appropriate index for use under the EAJA because 28 U.S.C. § 2412(d)(2)(A) permits a ceiling rate adjustment to take into account "an increase in the cost of living" — not the cost of legal services.¹⁶ This reasoning, and the weight of precedent behind it, are compelling. Therefore, this Court will use the CPI-U "all items" index in calculating cost-of-living adjustments under the EAJA.

With regard to the second computational issue, there are essentially two time periods that courts have used to compare to the base period when calculating cost of living adjustments under the EAJA: (1) the period when legal services were performed for the plaintiff; or (2) a "current" date, such as the date the plaintiff became a prevailing party, or the date when fees are awarded. Again, the Eleventh Circuit has not addressed this issue. However, every circuit court that has considered this issue carefully has concluded, in light of relevant Supreme Court precedent, that the period when services were performed is the correct period to use.¹⁷ Additionally, at least one court in this district has followed this approach.¹⁸ Therefore, based on the weight of precedent, this Court will use the period when services were performed in calculating cost-of-living adjustments under the EAJA.

Having determined that the period when services were...