Gundy v. Commissioner of Social Security

Filing 24

ORDER granting 23 Plaintiff's Uncontested Petition for EAJA Fees Pursuant to 28 U.S.C. 2412(d). Plaintiff is awarded $6,053.11 in attorney's fees and $24.00 in paralegal fees.Attorney's and Paralegal fees may be paid directly to counsel if the United States Department of Treasury determines that no federal debt is owed. The Clerk of Court is directed to enter an amended judgment, and close the case. Signed by Judge Sheri Polster Chappell on 11/5/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELINA GUNDY,
Plaintiff,
v.

Case No: 2:14-cv-216-FtM-38CM

COMMISSIONER
SECURITY,

OF

SOCIAL

Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff’s Uncontested Petition for EAJA
Fees Pursuant to 28 U.S.C. 2412(d)2 (Doc. #23) filed on November 3, 2014. Carolyn
W. Colvin, Acting Commissioner of Social Security, does not oppose the Motion or the
relief requested. (Doc. #23 at 4). The Plaintiff is requesting $6,053.11 in attorney fees
and $24.00 in paralegal fees pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. §2412(d).
A. Eligibility for Award of Fees
According to Middle District case law, a plaintiff will receive an award of fees
under EAJA when the following five conditions are met:

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Plaintiff mistakenly includes the wrong rule in the title of her motion, 28 U.S.C. 2312(d) when it should be
28 U.S.C. 2412(d). Plaintiff names the proper rule section in the body of her petition.

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(1) Plaintiff must file a timely application for attorney fees; (2) Plaintiff's
net worth must have been less than $2 million dollars at the time the
Complaint was filed; (3) Plaintiff must be the prevailing party in a non-tort
suit involving the United States; (4) The position of the United States must
not have been substantially justified; and (5) There must be no special
circumstances that would make the award unjust.
Jipson v. Comm'r of Soc. Sec., No. 2:13-CV-450-FTM-38DN, 2014 WL 2951824, at *2
(M.D. Fla. July 1, 2014) (internal citations omitted).
In order to be a timely application according to 23 U.S.C. §2412(d)(1)(B), “a fee
application must be filed within thirty days of the final judgment, and this requirement is
jurisdictional in nature.” Jipson, 2014 WL 2951824, at *2. Here, Judgment (Doc. #22)
was entered on October 28, 2014; therefore, Plaintiff’s Uncontested Petition for EAJA
Fees Pursuant to 28 U.S.C. §2414(d) (Doc. #23) was timely filed. Then, Plaintiff’s net
worth was less than $2 million dollars at the time the lawsuit was filed. (Doc. #23 at 2).
Also, Plaintiff satisfied the prevailing party requirement because the case was
remanded pursuant to sentence four. (Doc. #23 at 2). See Shalala v. Schaefer, 509
U.S. 292, 302 (1993) (stating a sentence four remand is a judgment for the plaintiff, the
prevailing party). Plaintiff claims the position of the United States was not substantially
justified “because the ALJ failed to consider the Plaintiff’s residual functional capacity
through the period at issue, obtain evidence from a vocational expert, or properly
evaluate the ability of the Plaintiff to perform past relevant work.” (Doc. #23 at 19).
Finally, the Commissioner has made no claim regarding the existence of special
circumstances against the awarding of attorney fees. See Santana v. Colvin, No. 8:13CV-1737-T-33AEP, 2014 WL 1930545, at *2 (M.D. Fla. May 14, 2014) (the Court found
no special circumstances to deny the award of attorney fees where the Commissioner
did not claim special circumstances).
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B. Amount of Fees
As to the reasonable award of attorney fees, Plaintiff is requesting the following
hourly rate: $190.95 an hour for 2014; amount is adjusted to compensate for cost of
living increases. (Doc. #23 at 3).
EAJA fees are determined under the “lodestar” method by determining the
number of hours reasonably expended on the matter multiplied by a
reasonable hourly rate. The resulting fee carries a strong presumption
that it is the reasonable fee. The amount of EAJA fees is wholly
dependent on the facts of the case. “‘[E]xcessive, redundant or otherwise
unnecessary’ hours” must be deducted from an award of fees…. EAJA
fees are “based upon prevailing market rates for the kind and quality of
services furnished,” not to exceed $125 per hour unless the Court
determines that an increase in the cost of living or a special factor justifies
a higher fee.
Jipson, 2014 WL 2951824, at *3-4 (internal citations omitted). The Commissioner does
not object to these hourly rates and the Court determines the rates are reasonable.
(Doc. #23 at 4). Plaintiff petitions payment for 31.70 hours. (Doc. #23 at 3). This
comes to a total of $6,053.11. The Court also approves the paralegal fees sought in
this case, which amount to $24.00. See Santana, 2014 WL 1930545, at *2 (Court
approves petition for paralegal fees).
C. Payment of Fees
In Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the
Supreme Court held EAJA payments “may be made directly to a plaintiff's attorney only
in cases in which the plaintiff does not owe a debt to the government and the plaintiff
has assigned the right to EAJA fees to her attorney.” Santana, 2014 WL 1930545, at
*2. Here, Plaintiff attached an Attorney Fee Contract for Social Security Benefits/SSI
Fee Agreement-Federal Court (Doc. #23-1 at 1). The document is signed by Plaintiff,
Michelina Gundy and Attorney, Carol Avard. (Doc. #23-1 at 1). The document states “I
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[Plaintiff] hereby assign any court awarded EAJA attorney fees and costs, for federal
court work only, to my attorney. I [Plaintiff] also give my attorney a Power of Attorney to
sign any EAJA check made out in my name.” (Doc. #23-1 at 1). Therefore, since
Plaintiff has assigned the right to EAJA fees to her attorney, the Court orders the
$6,053.11 in attorney fees be paid directly to counsel if the United States Department of
Treasury determines that no federal debt is owed.
CONCLUSION
Plaintiff has met the five conditions for receiving an award of attorney fees under
EAJA. Therefore, the Court grants Plaintiff’s petition.
Accordingly, it is now ORDERED:
Plaintiff’s Uncontested Petition for EAJA Fees Pursuant to 28 U.S.C. 2412(d)
(Doc. #23) is GRANTED.
1. Plaintiff is awarded $6,053.11 in attorney's fees and $24.00 in
paralegal fees.
2. Attorney’s and Paralegal fees may be paid directly to counsel if the
United States Department of Treasury determines that no federal debt
is owed.
3. The Clerk of Court is directed to enter an amended judgment, and
close the case.
DONE and ORDERED in Fort Myers, Florida this 5th day of November, 2014.

Copies: All Parties of Record
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