Thompson v. Commissioner of Social Security

Filing 31

ORDER granting 30 Plaintiff's Petition for EAJA Fees Pursuant to 28 U.S.C. 2312(d). The Clerk is directed to enter judgment for Plaintiff as to attorney's fees in the amount of $7,118.00. Signed by Magistrate Judge Carol Mirando on 6/10/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANELLE THOMPSON,
Plaintiff,
v.

Case No: 2:15-cv-53-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Before the Court upon review of Plaintiff's Petition for EAJA Fees Pursuant to
28 U.S.C. 2312(d) (Doc. 30), filed on April 12, 2016. 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 $7,106.00 and paralegal fees in the amount of $12.00 for a total
of $7,118.00. Doc. 30 at 1. Plaintiff represents that the Commissioner is opposed
to the requested relief. The Commissioner, however, has not filed a response in
opposition, and the time has expired for it to do so. Failure to respond creates a
presumption that the motion is unopposed. Great American Assur. Co. v. Sanchuk,

LLC, 2012 WL 195526, at *3 (M.D. Fla. 2012). For the reasons stated herein, the
Motion is granted.
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, on March 15, 2016 the Court entered an Opinion and Order
reversing and remanding this case to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g). Doc. 28. Judgment was entered
the next day. Doc. 29. Plaintiff also asserts that the Commissioner’s position in the
underlying action was not substantially justified and that her net worth at the time
this proceeding was filed was less than $2 million. Doc. 30 at 2. The Court finds
that all conditions have been met.
EAJA fees are “based upon prevailing market rates for the kind and quality of
services furnished,” not to exceed $125.00 per hour unless the Court determines that
an increase in the cost of living or a special factor justifies a higher fee. 28 U.S.C. §
2412(d)(2)(A).
process.

Determination of the appropriate hourly rate is thus a two-step

The Court first determines the prevailing market rate; then, if the

prevailing rate exceeds $125.00, the Court determines whether to adjust the hourly
rate. Meyer v. Sullivan, 958 F.2d 1029, 1033-34 (11th Cir. 1992). The prevailing
market rates must be determined according to rates customarily charged for similarly
complex litigation, and are not limited to rates specifically for social security cases.

Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985).
Plaintiff’s counsel, Carol Avard and Mark Zakhvatayev, are requesting an
adjusted hourly rate that is authorized by applying the cost-of-living adjustment to
the $190.00 ceiling for work they performed in 2015 and 2016 and $60.00 per hour

-2-

for work their paralegal performed in 2015 and 2016. Because the adjusted hourly
rates sought are within the rates permitted by the EAJA, the Court finds that $190.00
per hour in 2015 and 2016 is an appropriate and reasonable hourly rate. Plaintiff’s
counsel also has submitted timesheets that include an itemization of legal services
performed. Doc. 30 at 17-18. Attorney Avard spent a total of 26.6 hours of work in
2015 and .6 hours of work in 2016 on Plaintiff’s case. Id. Attorney Zakhvatayev
spent a total of 2.3 hours of work in 2015 on Plaintiff’s case and the paralegal spent
a total of .2 hours in 2015.

Id. After reviewing the description of the services

provided, the Court also concludes that the time is reasonable and properly
compensable.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff's Petition for EAJA Fees Pursuant to 28 U.S.C. 2312(d) (Doc.

30) is GRANTED. Attorney’s fees in the amount of $7,118.00 shall be awarded to
Plaintiff pursuant to the EAJA, 28 U.S.C. § 2412(d).

If the United States

Department of the Treasury determines that Plaintiff does not owe a federal debt,
the Government will accept Plaintiff’s assignment of EAJA fees and pay fees directly
to Plaintiff’s counsel.
2.

The Clerk is directed to enter judgment for Plaintiff as to attorney’s fees

in the amount of $7,118.00.

-3-

DONE and ORDERED in Fort Myers, Florida on this 10th day of June, 2016.

Copies:
Counsel of record

-4-