Opinion
Case No.: 8:17-cv-407-T-AAS
10-31-2018
SHELLEY ANNE SCHOENFELD, Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.
ORDER
Shelley Anne Schoenfeld moves for an award of fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 22). Specifically, Ms. Schoenfeld seeks attorney's fees in the amount of $4,045.17, litigation expenses in the amount of $65.38, and costs in the amount of $400.00. (Id.).
The court may award fees pursuant to the EAJA upon a showing that: (1) the claimant is a prevailing party, (2) the government's position was not substantially justified, (3) the claimant's application was timely filed, (4) the claimant's net worth was less than $2 million at the time the complaint was filed, and (5) no circumstances make the award unjust. See 28 U.S.C. § 2412(d). The fee award must also be reasonable. 28 U.S.C. § 2412(d)(2)(A).
The court entered an order reversing and remanding the case under sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative proceedings. (Doc. 20). The Clerk entered judgment in favor of Ms. Schoenfeld thereafter. (Doc. 21). As the prevailing party, Ms. Schoenfeld now requests an award of fees. See 28 U.S.C. § 2412(a)(1) & (d)(1)(A). The Commissioner does not challenge Ms. Schoenfeld's entitlement to fees under the EAJA but argues the attorney's fees requested are based on an unreasonable hourly rate and improperly include clerical tasks. (Doc. 23).
A. Reasonable Hourly Rate
Pursuant to the EAJA, "the amount of fees awarded . . . shall be based upon prevailing market rates for the kind and quality of the services furnished." 28 U.S.C. § 2412(d)(2)(A). Ms. Schoenfeld requests an hourly rate of $195.61 for attorney Suzanne L. Harris, $125.00 per hour for work performed by attorneys not admitted to the Middle District of Florida, and $75.00 per hour for work performed by paralegals. Ms. Schoenfeld's attorney's fee request is broken down as follows:
| Name | Status | Rate | Hours | Total |
|---|---|---|---|---|
| Suzanne L. Harris | Attorney, admitted toM.D. Fla. | $195.61 | 1.1 | $215.17 |
| Howard D. Olinsky | Attorney, notadmitted to M.D. Fla. | $125.00 | 2.1 | $262.50 |
| Edward A. Wicklund | Attorney, notadmitted to M.D. Fla. | $125.00 | 2.3 | $287.50 |
| Marisa Burkett | Attorney, notadmitted to M.D. Fla. | $125.00 | 19.9 | $2,487.50 |
| Michelle Fecio | Attorney, notadmitted to M.D. Fla. | $125.00 | 1 | $125.00 |
| Michael Smith | Paralegal | $75.00 | 0.4 | $30.00 |
| Jonnah Graser | Paralegal | $75.00 | 2.4 | $180.00 |
| Moira Deutch | Paralegal | $75.00 | 0.3 | $22.50 |
| Shannon Persse | Paralegal | $75.00 | 0.4 | $30.00 |
| Kyrsten Gifford | Paralegal | $75.00 | 0.8 | $60.00 |
| Michelle Callahan | Paralegal | $75.00 | 0.7 | $52.50 |
| Tamica Lockwood | Paralegal | $75.00 | 3.7 | $277.50 |
| Jennifer Overfield | Paralegal | $75.00 | 0.2 | $15.00 |
|---|---|---|---|---|
| TOTAL: | $4,045.17 |
The Commissioner challenges as unreasonable the rates requested for attorneys not admitted to the Middle District of Florida. As the Commissioner points out, the prevailing market rate for social security appeals for attorneys not admitted to practice in the Middle District of Florida is the reasonable hourly rate of a paralegal for social security appeals, or $75.00 per hour. See e.g., 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); Duffield v. Colvin, No. 3:15-cv-1065-J-MCR, 2016 WL 6037306, at *2 (M.D. Fla. Oct. 14, 2016). Indeed, the Eleventh Circuit affirmed a district court's decision to award EAJA fees at a paralegal rate for attorneys not admitted to practice before the district court. See Zech v. Comm'r of Soc. Sec., 680 F. App'x 858, 860 (11th Cir. 2017). Therefore, the court will reduce the hourly rate for attorneys Howard D. Olinsky, Edward A. Wicklund, Marisa Burkett, and Michelle Fecio to $75.00 per hour.
B. Hours Expended
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. Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000) ("[T]asks of a clerical nature are not compensable as attorney's fees."). Review of the cited records reveals billing charges for non-compensable clerical time, such as mailing correspondence to Ms. Schoenfeld and the Clerk, calendaring deadlines, and filing, among others. (See Billing records, Doc. 22, Ex. C; Commissioner's list of clerical tasks, Doc. 23, pp. 6-8). (Id.). Thus, the following time entries will be deducted:
| Name | Task | Date | Hours | Total |
|---|---|---|---|---|
| Suzanne L.Harris | Service of processReview summons, calendaranswer date | 3/10/173/23/2017 | 0.20.2 | $39.12$39.12 |
| Howard D.Olinsky | Review summons | 3/8/2017 | 0.2 | $15.00 |
| Edward A.Wicklund | Review scheduling order,calendar deadlines | 6/13/2017 | 0.2 | $15.00 |
| Michael Smith | Sent correspondence to theClerk | 2/23/2017 | 0.2 | $15.00 |
| Jonnah Graser | Ready and file EAJAPetition | 10/3/2018 | 0.9 | $67.50 |
| Shannon Persse | Remand Referral back to AC | 7/11/2018 | 0.2 | $15.00 |
| MichelleCallahan | Federal Court Accept Letter,New FihngFile Proof of Service | 2/21/20173/22/2017 | 0.30.3 | $22.50$22.50 |
| TamicaLockwood | Sent Third Party Auth.FormSent Prospect PacketReview executed ProspectPacket for completionSave executed Third PartyAuth. FormReview notarized ProspectPacket for completion | 2/15/20172/15/20172/15/20172/15/20172/16/2017 | 0.20.20.30.10.3 | $15.00$15.00$22.50$7.50$22.50 |
| TOTAL: | $333.24 |
Considering the above revisions to the hourly rates and number of hours billed, the amount of fees awarded to Ms. Schoenfeld will be adjusted as follows:
| Name | Status | Rate | Hours | Total |
|---|---|---|---|---|
| Suzanne L. Harris | Attorney, admitted toM.D. Fla. | $195.61 | 0.9 | $176.05 |
| Howard D. Olinsky | Attorney, notadmitted to M.D. Fla. | $75.00 | 1.9 | $142.50 |
| Edward A. Wicklund | Attorney, notadmitted to M.D. Fla. | $75.00 | 2.1 | $157.50 |
| Marisa Burkett | Attorney, notadmitted to M.D. Fla. | $75.00 | 19.9 | $1,492.50 |
| Michelle Fecio | Attorney, notadmitted to M.D. Fla. | $75.00 | 1 | $75.00 |
| Michael Smith | Paralegal | $75.00 | 0.2 | $15.00 |
| Jonnah Graser | Paralegal | $75.00 | 1.5 | $112.50 |
| Moira Deutch | Paralegal | $75.00 | 0.3 | $22.50 |
| Shannon Persse | Paralegal | $75.00 | 0.2 | $15.00 |
| Kyrsten Gifford | Paralegal | $75.00 | 0.8 | $60.00 |
| Michelle Callahan | Paralegal | $75.00 | 0.1 | $7.50 |
| Tamica Lockwood | Paralegal | $75.00 | 2.6 | $195.00 |
| Jennifer Overfield | Paralegal | $75.00 | 0.2 | $15.00 |
| TOTAL: | $2,486.05 |
C. Conclusion
Accordingly, Ms. Schoenfeld's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. 22) is GRANTED in part as follows:
(1) Ms. Schoenfeld is awarded attorney's fees in the amount of $2,486.05, expenses in the amount of $65.38, and costs in the amount of $400.00.
(2) The United States Department of the Treasury will determine whether Ms. Schoenfeld owes a debt to the government. If Ms. Schoenfeld has no discernable federal debt, the government will accept Ms. Schoenfeld's assignment of EAJA fees (Doc. 22, Ex. Q) and pay the fees awarded directly to Ms. Schoenfeld's counsel.
(3) In all other respects, the motion is DENIED.
ORDERED in Tampa, Florida on October 31, 2018.
/s/_________
AMANDA ARNOLD SANSONE
United States Magistrate Judge