McEnteer v. Commissioner of Social Security

Filing 24

ORDER granting 23 Plaintiff's Unopposed Application for Attorneys 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 $5,079.94 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). See order for more details. Signed by Magistrate Judge Carol Mirando on 2/16/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY MCENTEER,
Plaintiff,
v.

Case No: 2:15-cv-288-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Unopposed
Application for Attorneys Fees Under the Equal Access to Justice Act (Doc. 23) filed
on February 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 $5,079.94.
Plaintiff attaches a retainer agreement and an exhibit of total compensable time by
his attorneys, confirming a total of 26.80 hours at the rate of $189.55 per hour. Doc.
23 at 8-10. The commissioner does not oppose the relief requested. 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 December 14, 2015, the 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. 21. A judgment was entered the following
day.

Doc. 22.

Plaintiff also asserts that the Commissioner’s position in the

underlying action was not substantially justified (Doc. 23 at 3-4) and that his net
worth at the time this proceeding was filed was less than two million dollars. Doc.
23 at 1-2. The 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. §
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 is requesting an adjusted hourly rate that is authorized by
applying the cost-of-living adjustment to the $125.00 ceiling for work performed in
2015. Doc. 23 at 4-6. Because the Commissioner does not object to the adjusted
hourly rate sought, and the adjusted hourly rate sought is within the rates permitted

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by the EAJA, the Court finds that $189.55 per hour is an appropriate and reasonable
hourly rate for attorney time. Plaintiff’s counsel also has included an exhibit of total
compensable time spent by attorneys, confirming a total of for 26.80 hours. Docs. 23
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
ORDERED:
1.

Unopposed Application for Attorneys Fees Under the Equal Access to

Justice Act (Doc. 23) is GRANTED. Attorney’s fees in the amount of $5,079.94 shall
be awarded to Plaintiff pursuant to the 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 $5,079.94 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 16th day of February,
2016.

Copies:
Counsel of record

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