Girling v. Commissioner of Social Security

Filing 37

ORDER granting 35 Plaintiff's Motion for Attorney's Fees Pursuant to 28 U.S.C. 2312(d) [sic]. Attorney's fees in the amount of $548.63 shall be awarded to Plaintiff pursuant to the 28 U.S.C. § 2412(d). If the United St ates 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 $548.63 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by Magistrate Judge Carol Mirando on 11/7/2017. (KBR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEVEN GIRLING,
Plaintiff,
v.

Case No: 2:16-cv-38-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Uncontested
Supplemental Petition for EAJA Fees Pursuant to 28 U.S.C. 2312(d) [sic] (Doc. 35)
filed on November 2, 2017. Plaintiff moves pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412, for a supplemental award of attorney’s fees in the
amount of $550.00.1 Doc. 35 at 1.

Plaintiff indicates that his counsel spent an

additional 2.85 hours to research Defendant’s objections to Plaintiff’s Petition for
EAJA Fees and prepare a reply. Id. Plaintiff represents that the Commissioner
does not oppose the motion or relief requested. Id. at ¶14. For the reasons stated
herein, the motion is due to be granted.2
On October 3, 2016, this Court entered an Order reversing and remanding

Although Plaintiff requests $550.00, the appropriate amount payable when using a
rate of $192.50 for a time period of 2.85 hours is $548.63.
1

The Court will grant Plaintiff’s motion, but will adjust the total amount awarded to
$548.63 based on a rate of $192.50 for a time period of 2.85 hours.
2

Plaintiff’s case to the Commissioner for further proceedings pursuant to sentence four
of 42 U.S.C. § 405(g). Doc. 26. Judgment was entered on October 7, 2016. Doc. 27.
Plaintiff then filed a motion for Attorney’s Fees pursuant to the EAJA. Doc. 28. On
November 29, 2016 the Commissioner filed a Response opposing Plaintiff’s Motion
for Attorney’s Fees. Doc. 29. The Commissioner argued that the number of hours
expended by Plaintiff’s counsel was unreasonable in light of the simplicity of the
issues and Plaintiff’s counsel’s many years of experience. See generally, Doc. 29.
Plaintiff requested leave to file a reply (Doc. 30), which was granted (Doc. 31).
Plaintiff’s Reply argued in part that Counsel’s fees were reasonable as most social
security appeals require between twenty and forty hours of work, and Plaintiff’s
counsel spent 38.3 hours in total writing the brief and preparing the initial petition.
Doc. 32 at 1-2.
On October 6, 2017 the Court issued an order finding that Plaintiff’s requested
fees were unreasonable and awarded Plaintiff fees in the amount of $5,733.10,
representing a reduction of $1,651.56 from the Plaintiff’s requested fees of $7372.75
plus $12.00 in paralegal fees. Doc. 33 at 1, 7. Plaintiff now requests an additional
$550.00 in attorney’s fees for the 2.85 hours that Plaintiff’s counsel spent preparing
its reply to the Commissioner’s objections. Doc. 35 at 1. The Commissioner does
not contest that Plaintiff meets the requirements under the EAJA3, and the Court
finds that all conditions have been met.

Because the Commissioner does not contest that Plaintiff meets the requirements
under the EAJA, the Court interprets this as a concession that Plaintiff was a prevailing
party, the Government’s position was not substantially justified, and no special
circumstances exist which would make the award of fees unjust. The Court notes, however,
3

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Under the EAJA, a prevailing party is eligible for an award of litigation costs
in any civil action brought against any agency or any official of the United States
acting in his or her official capacity.

28 U.S.C. § 2412(a).

Under the EAJA, a

claimant is also 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).
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).

that the Court reduced Plaintiff’s attorney’s fees based on the Commissioner’s motion (Doc.
33 at 1, 7), and the Court would have considered this in determining Plaintiff’s eligibility for
a supplemental award had the Commissioner objected.

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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
2016.

Doc. 35 at 3.

Because the Commissioner does not object to the adjusted

hourly rate sought, and the adjusted hourly rate sought is within the rates permitted
by the EAJA, the Court finds that $192.50 per hour is an appropriate and reasonable
hourly rate for attorney time. Plaintiff’s counsel also has included exhibits of total
compensable time spent by on this matter (Doc. 35 at 17) confirming a total of 2.85
hours of attorney time. 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 Motion for Attorney's Fees Pursuant to 28 U.S.C. 2312(d) [sic]

(Doc. 35) is GRANTED. Attorney’s fees in the amount of $548.63 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 $548.63 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).

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DONE and ORDERED in Fort Myers, Florida on this 7th day of November,
2017.

Copies:
Counsel of record

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