Jean v. Commissioner of Social Security

Filing 34

ORDER granting 33 Plaintiff's Partially Uncontested 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 $7,425.55 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by Magistrate Judge Carol Mirando on 11/30/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROSELAINE JEAN,
Plaintiff,
v.

Case No: 2:16-cv-569-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Partially
Uncontested Petition for EAJA Fees Pursuant to 28 U.S.C. 2312(d) (Doc. 33) filed on
October 30, 2017.

Plaintiff moves pursuant to the Equal Access to Justice Act

(“EAJA”) for an award of attorney’s fees in the amount of $7,425.55.

Doc. 33 at 1.

Plaintiff attaches an itemization of time confirming a total of 1.70 hours expended at
the hourly rate of $192.68 in 2016 and 36.40 hours expended at the hourly rate of
$195.00 in 2017.

Id. at 14-15.

Plaintiff states the Commissioner opposes the

requested relief to the extent that the present petition was filed before the time to
appeal has expired.

Id. at 1 n.2. The Commissioner does not oppose the requested

relief in other respects.

Id. As of this date, the time to file a notice of appeal had

expired, and neither parties have filed a notice.

The Commissioner has not filed a

response to the present petition, creating a presumption that the petition is
unopposed.

Great Am. Assur. Co. v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP,

2012 WL 195526, at *3 (M.D. Fla. Jan. 23, 2012).

For the reasons stated herein, the

petition 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).

On September 29, 2017, this 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).
29, 2017.

Doc. 31.

Judgment was entered on September

Doc. 32. Plaintiff asserts the Commissioner’s position in the underlying

action was not substantially justified, and her net worth at the time this proceeding
was filed was less than two million dollars.

Doc. 33 at 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.
§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

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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 adjusted hourly rates that are authorized by
applying the cost-of-living adjustment to the $125.00 ceiling for work she and her cocounsel performed in 2016 and 2017. Doc. 33 at 3.

Because the Commissioner does

not object to the adjusted hourly rates sought and they are within the rates permitted
by the EAJA, the Court finds $192.68 per hour for 2016 and $195.00 per hour for 2017
are appropriate and reasonable hourly rates.

Plaintiff’s counsel also has submitted

a schedule of hours that include an itemization of legal services performed.
at 14-15.

Doc. 33

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 Partially Uncontested Petition for EAJA Fees Pursuant to 28

U.S.C. 2312(d) (Doc. 33) is GRANTED.

Attorney’s fees in the total amount of

$7,425.55 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.

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2.

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

in the amount of $7,425.55 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 29th day of November,
2017.

Copies:
Counsel of record

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