Schoenfeld v. Commissioner of Social Security

Middle District of Florida, flmd-8:2017-cv-00407

ORDER granting in part and denying in part {{22}} Motion for Attorney Fees. Signed by Magistrate Judge Amanda Arnold Sansone on 10/31/2018. (BEE)

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PageID 585 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SHELLEY ANNE SCHOENFELD, Plaintiff, v. Case No.: 8:17-cv-407-T-AAS 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. 1 PageID 586 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 to $195.61 1.1 $215.17 M.D. Fla. Howard D. Olinsky Attorney, not $125.00 2.1 $262.50 admitted to M.D. Fla. Edward A. Wicklund Attorney, not $125.00 2.3 $287.50 admitted to M.D. Fla. Marisa Burkett Attorney, not $125.00 19.9 $2,487.50 admitted to M.D. Fla. Michelle Fecio Attorney, not $125.00 1 $125.00 admitted to M.D. Fla. 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 2 PageID 587 Jennifer Overfield Paralegal $75.00 0.2 $15.00 TOTAL: $4,045.17 (Doc. 22, Exs. D-P). 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 3 PageID 588 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. Service of process 3/10/17 0.2 $39.12 Harris Review summons, calendar 3/23/2017 0.2 $39.12 answer date Howard D. Review summons 3/8/2017 0.2 $15.00 Olinsky Edward A. Review scheduling order, 6/13/2017 0.2 $15.00 Wicklund calendar deadlines Michael Smith Sent correspondence to the 2/23/2017 0.2 $15.00 Clerk Jonnah Graser Ready and file EAJA 10/3/2018 0.9 $67.50 Petition Shannon Persse Remand Referral back to AC 7/11/2018 0.2 $15.00 Michelle Federal Court Accept Letter, 2/21/2017 0.3 $22.50 Callahan New Filing File Proof of Service 3/22/2017 0.3 $22.50 Tamica Sent Third Party Auth. 2/15/2017 0.2 $15.00 Lockwood Form Sent Prospect Packet 2/15/2017 0.2 $15.00 Review executed Prospect 2/15/2017 0.3 $22.50 Packet for completion Save executed Third Party 2/15/2017 0.1 $7.50 Auth. Form Review notarized Prospect 2/16/2017 0.3 $22.50 Packet for completion TOTAL: $333.24 4 PageID 589 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 to $195.61 0.9 $176.05 M.D. Fla. Howard D. Olinsky Attorney, not $75.00 1.9 $142.50 admitted to M.D. Fla. Edward A. Wicklund Attorney, not $75.00 2.1 $157.50 admitted to M.D. Fla. Marisa Burkett Attorney, not $75.00 19.9 $1,492.50 admitted to M.D. Fla. Michelle Fecio Attorney, not $75.00 1 $75.00 admitted to M.D. Fla. 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 5 PageID 590 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. 6