Wheeler v. Commissioner of Social Security

Filing 26

ORDER granting 25 Plaintiff's Petition for Attorney Fees. The Clerk is directed to enter judgment for Plaintiff as to attorney's fees in the amount of $4,738.37 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by Magistrate Judge Carol Mirando on 12/13/2016. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RECE WHEELER,
Plaintiff,
v.

Case No: 2:15-cv-769-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff's Petition for
Attorney Fees (Doc. 25) filed on December 13, 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 $4,738.37.

Doc. 25 at 1.

Plaintiff attaches an itemization of time

confirming a total of 25.40 hours at the rate of $186.55 per hour for the years 2015
and 2016.

Id. at 3; Doc. 25-1. Plaintiff represents that the Commissioner does not

oppose the Motion or relief requested.

Doc. 25 at 2 ¶ 6.

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 September 15, 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).
20, 2016.

Doc. 23.

Judgment was entered on September

Doc. 24. 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. 25 at 1-2 ¶¶ 4-5.

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.
§2412(d)(2)(A).
process.

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. 25 at 2.

Because the Commissioner does not object to the

adjusted hourly rate sought and it is within the rates permitted by the EAJA, the

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Court finds that $186.55 per hour for the years 2015 and 2016 is an appropriate and
reasonable hourly rate.

Plaintiff’s counsel also has submitted a schedule of hours

that include an itemization of legal services performed.

Doc. 25-1.

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 Attorney Fees (Doc. 25) is GRANTED.

Attorney’s fees in the total amount of $4,738.37 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 $4,738.37 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 13th day of December,
2016.

Copies:
Counsel of record

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