Diaz v. Commissioner of Social Security
Filing
26
ORDER denying 25 Plaintiff's Unopposed Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act. Signed by Magistrate Judge Carol Mirando on 7/6/2015. (ANW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NELSON DIAZ,
Plaintiff,
v.
Case No: 2:14-cv-609-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Before the Court is Plaintiff's Unopposed Motion for Attorney’s Fees Pursuant
to the Equal Access to Justice Act (“Motion”, Doc. 25), filed on July 2, 2015. Plaintiff
moves pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for
an award of attorney’s fees in the amount of $5,115.00, and attaches a timesheet
confirming a total of 27.5 hours worked on this matter at a rate of $186.00 per hour.
Docs. 25, 25-1 at 3. Plaintiff represents that the Commissioner has no objection to
the Motion or relief requested. Doc. 25 at 3. For the reasons stated herein, the
Motion is denied.
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).
In this case, there has been no judgment entered against either party.
Therefore, there is no prevailing party at this time. Plaintiff asserts that the Court
entered an Order remanding this case for a new hearing. Doc. 30 at 1. The Court,
however, has not entered such an Order.
The last order entered by the Court
granted Defendant an extension to file its memorandum of law.
Doc. 24.
The
parties have not requested a remand, nor has the Court determined that remand is
appropriate in this case. Accordingly, Plaintiff’s motion is denied as it is premature.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff's Unopposed Motion for Attorney's Fees Pursuant to the Equal Access
to Justice Act (Doc. 25) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 6th day of July, 2015.
Copies:
Counsel of record
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