Opinion
Case No: 5:17-cv-445-Oc-PRL
04-01-2019
BARBARA D. MULLINAX, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY Defendant.
ORDER
This matter is before the Court on Plaintiff's opposed motion for attorney's fees. (Doc. 28). 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 $3,527.27 and expenses in the amount of $50.03. The attached documents confirm the attorney and paralegal hours (Docs. 28-1-28-14) and expenses. (Doc. 28-16).
There is no dispute that Plaintiff's counsel is entitled to EAJA fees. Plaintiff asserts that she is the prevailing party in this litigation, that the Commissioner's position in the underlying action was not substantially justified and that her net worth at the time the proceeding was filed was less than two million dollars. On December 13, 2018, the Court entered an Order reversing and remanding this cause back to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 26). The next day, the Clerk entered Judgment. (Doc. 27). On March 13, 2019, Plaintiff filed her motion for attorney's fees. (Doc. 28). The Commissioner has filed a response in opposition. (Doc. 29).
Under the EAJA, a claimant is eligible for an attorney fee award where: (1) the claimant is a prevailing party in a non-tort suit involving the United States; (2) the Government's position was not substantially justified; (3) the claimant filed a timely application for attorney's fees; (4) the claimant 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).
While agreeing that time spent by paralegals (8.1 hours) and attorneys who have not been admitted to practice in the Middle District (25.0 hours) should be compensated at the customary rate in this District for paralegals, the parties disagree as to the applicable rate. (See Doc. 28 at 4, Doc. 29 at 3-4). Plaintiff requests $100.00 per hour, while the Commissioner claims that the customary rate is only $75.00 per hour. I agree with the Commissioner that $75.00 is the normal reasonable rate in this District for paralegals. See Schoenfeld v Berryhill, 8:17-cv-407-T-AAS, 2018 WL 5634000, at *1 (M.D. Fla. October 31, 2018); Wood v. Comm'r of Soc. Sec., No. 2:15-cv-437-FtM-29CM, 2017 WL 2298190, at *3 (M.D. Fla. May 26, 2017). Accordingly, the Court will reduce the hourly rate for attorneys Howard D. Olinsky, Melissa A. Palmer, Megan M.E. Wicklund, and Edward A. Wicklund, as well as paralegals Michelle Callahan, Jonnah Graser, Jennifer Overfield, Tamica Lockwood, Vincent Wisehoon, Krysten Gifford, Moira Deutch, and Michael P. Smith.
The Commissioner also challenges the reasonableness of the hours billed by attorneys and paralegals in connection with the case, noting hours billed for non-compensable clerical tasks. Review of the cited records reveals billing charges for non-compensable clerical time, including mailing correspondence to Plaintiff, and calendaring deadlines. Accordingly, the following time entries will be deducted. See e.g., Shoenfeld, 2018 WL 5634000 at *1 (deducting time entries because tasks of a clerical nature are not compensable as attorney's fees).
On January 17, 2018, Attorney Edward Wicklund spent 0.4 hours on "[p]reliminary review of transcript-assign Attorney writer." Plaintiff offers no further explanation regarding this entry. The task of assigning an attorney writer is clerical in nature, and presumably the review of the transcript was related to assigning the writer. Even so, the task of reviewing the transcript is duplicative of the work performed by the brief writer, Melissa Palmer: "[r]eview certified administrative record, take notes, organize facts." And thus, would not be compensable as clerical and/or duplicative. --------
| Worker | Task | Date | Hrs |
|---|---|---|---|
| Vincent Wisehoon | FDC Packet Sent via RightSignature & USPS for clientsignature of contract | 9/18/2017 | 0.2 |
| Olinsky, Howard D. | Review summons issued as toCommissioner, USAO, andUSAG | 10/16/2017 | 0.2 |
| Wicklund, Edward A. | Note summons returned executedas to USAO, calendar answer duedate (12/26/17) | 11/28/2017 | 0.2 |
| Note Proof of Service filed | 11/28/2017 | 0.1 | |
| Note motion for extension to fileanswer filed by OC | 12/19/2017 | 0.1 | |
| Note endorsed ordergranting extension to fileanswer to OC | 1/3/2018 | 0.1 | |
| Note set/reset deadline re:answer due 1/25/18 | 1/8/2018 | 0.1 | |
| Combine, OCR, and LiveBookmark administrativetranscript (770 pages) | 1/17/2018 | 0.8 | |
| Note Magistrate Consent filed byOC | 1/17/2018 | 0.1 | |
| Preliminary review oftranscript-assign Attorney writer | 1/17/2018 | 0.4 | |
| Review scheduling order,calendar briefing deadlines totask pad | 1/22/2018 | 0.3 | |
| Note order approving Consentto Jurisdiction by Magistrate | 1/23/2018 | 0.1 | |
| Note case reassigned toMagistrate Judge Phillip R.Lammens, updatecase number | 1/25/2018 | 0.1 | |
| Note motion filed by OC re:Extension request to fileDefendants brief | 5/21/2018 | 0.1 | |
| Note order grantingExtension request to fileDefendants brief, updatecalendar | 5/22/2018 | 0.2 |
| Note motion filed by OC re:Second Extension request to fileDefendants brief | 6/21/2018 | 0.1 | |
| Note order granting SecondExtension request to file Dbrief, update calendar | 6/25/2018 | 0.1 |
Based on the above revisions to the hourly rates and hours billed, the fees awarded to Plaintiff will be adjusted as follows:
| Name | Hours/Rate | Total |
|---|---|---|
| Suzanne L. HarrisAttorney, admitted M.D. Fla. | 0.5 hours at $97.810.6 hours at $119.46 | $217.27 |
| Howard D. OlinskyAttorney, not admitted to M.D. Fla. | 1.4 hours at $75.00 | $105.00 |
| Melissa A. PalmerAttorney, not admitted to M.D. Fla. | 19.1 hours at $75.00 | $1,432.50 |
| Megan M.E. WicklundAttorney, not admitted to M.D. Fla. | 0.6 hours at $75.00 | $45.00 |
| Edward A. WicklundAttorney, not admitted to M.D. Fla. | 0.8 hours at $75.00 | $60.00 |
| Michelle CallahanParalegal | 0.6 hours at $75.00 | $45.00 |
| Jonnah GraserParalegal | 2.8 hours at $75.00 | $210.00 |
| Jennifer OverfieldParalegal | 0.5 hours at $75.00 | $37.50 |
| Vincent WisehoonParalegal | 0.9 hours at $75.00 | $67.50 |
| Kyrsten GiffordParalegal | 1.1 hours at $75.00 | $82.50 |
| Moira DeutchParalegal | 1.6 hours at $75.00 | $120.00 |
| Michael P. SmithParalegal | 0.4 hours at $75.00 | $30.00 |
| Total$2,452.27 |
|---|
Pursuant to the provisions of the Equal Access to Justice Act (28 U.S.C. §2412(d)), Plaintiff's motion for attorney's fees (Doc. 28) is GRANTED in part. Plaintiff is awarded attorney's fees in the amount of $2,452.27 and expenses in the amount of $50.03. Payment is authorized to Plaintiff's counsel if the Commissioner determines Plaintiff does not owe a debt to the government.
DONE and ORDERED in Ocala, Florida on April 1, 2019.
/s/_________
PHILIP R. LAMMENS
United States Magistrate Judge Copies furnished to: Counsel of Record
Unrepresented Parties