White v. Commissioner of Social Security
ORDER granting 29 Plaintiff's Unopposed Application for Attorney Fees under the Equal Access to Justice Act. The Clerk is directed to enter judgment for Plaintiff as to attorney's fees in the amount of $7,059.99 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by Magistrate Judge Carol Mirando on 10/12/2016. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:15-cv-139-FtM-CM
COMMISSIONER OF SOCIAL
This matter comes before the Court upon review of Plaintiff’s Unopposed
Application for Attorney Fees under the Equal Access to Justice Act (Doc. 29) filed on
October 11, 2016. Plaintiff moves pursuant to the Equal Justice Act (“EAJA”), 28
U.S.C. § 2412(d), for an award of attorney’s fees in the amount of $7,059.99. Doc. 29
at 1. Plaintiff attaches an itemization of time confirming a total of 37.20 hours, 26.3
hours at the rate of $189.55 per hour for the year 2015 and 10.9 hours at the rate of
$190.35 per hour for the year 2016.
Id. at 9.
Plaintiff represents that the
Commissioner does not oppose the Motion or relief requested. Id. at 2. For the
reasons stated herein, the Motion is due to be 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 August 26, 2016, this Court entered an Order reversing and
remanding this case to the Commissioner for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). Doc. 27. Judgment was entered on August 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 two million dollars.
Doc. 29 at 1.
Commissioner does not contest that Plaintiff meets the requirements under the
EAJA, and 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.
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 is requesting an adjusted hourly rate that is authorized by
applying the cost-of-living adjustment to the $125.00 ceiling for work he performed
in 2015 and 2016. Doc. 29 at 5-6. Because the Commissioner does not object to the
adjusted hourly rate sought and it is within the rates permitted by the EAJA, the
Court finds that $189.55 per hour for the year 2015 and $190.35 per hour for the year
2016 are appropriate and reasonable hourly rates.
Plaintiff’s counsel also has
submitted a schedule of hours that include an itemization of legal services performed.
Id. at 8-9. After reviewing the description of the services provided, the Court also
concludes that the time is reasonable and properly compensable.
ACCORDINGLY, it is hereby
Plaintiff’s Unopposed Application for Attorney Fees under the Equal
Access to Justice Act (Doc. 29) is GRANTED. Attorney’s fees in the total amount of
$7,059.99 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.
The Clerk is directed to enter judgment for Plaintiff as to attorney’s fees
in the amount of $7,059.99 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 12th day of October,
Counsel of record
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