Herring v. Commissioner of Social Security

Filing 33

ORDER granting 31 unopposed motion for EAJA fees. The clerk is directed to amend the judgment to include an award to plaintiff of $7,610.49 for attorney's fees. See order for details. Signed by Magistrate Judge Nicholas P. Mizell on 9/15/2022. (SM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN KASHON HERRING,
Plaintiff,
v.

Case No. 2:21-cv-322-NPM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER
Before the court is plaintiff Kevin Herring’s unopposed motion for attorney’s
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc.
31). On June 14, 2022, the court reversed and remanded the decision of the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 29). Final
judgment was entered June 15, 2022. (Doc. 30). Now, Herring requests an award of
$7,610.49 in attorney’s fees. (Doc. 31). The motion is granted.
To receive an award of fees and costs under EAJA, the following five
conditions must be established: (1) plaintiff must file a timely application for
attorney’s fees; (2) plaintiff’s net worth must have been less than $2 million dollars
at the time the complaint was filed; (3) plaintiff must be the prevailing party in a
non-tort suit involving the United States; (4) the position of the United States must
not have been substantially justified; and (5) there must be no special circumstances

that would make the award unjust. 28 U.S.C. § 2412(d); Comm’r, I.N.S. v. Jean, 496
U.S. 154, 158 (1990). Upon consideration and with no opposition by the
Commissioner on eligibility grounds, all conditions of EAJA have been met.
EAJA fees are determined under the “lodestar” method by determining the
number of hours reasonably expended on the matter multiplied by a reasonable
hourly rate. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988); Jean v. Nelson, 863 F.2d 759, 773 (11th Cir. 1988). The
resulting fee carries a strong presumption that it is a reasonable fee. City of
Burlington v. Daque, 505 U.S. 557, 562 (1992).
EAJA fees are “based upon prevailing market rates for the kind and quality of
services furnished,” not to exceed $125 per hour unless the court determines an
increase in the cost of living, or a special factor justifies a higher fee. 28 U.S.C.
§ 2412(d)(2)(A). 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). Herring requests 35.5
hours of work performed at $214.38 an hour. (Doc. 31 at 3; Doc. 31-1). After review

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of the services provided, the requested hourly rate and hours expended were
reasonable
Accordingly, the motion for EAJA fees (Doc. 31) is GRANTED and the clerk
is directed to amend the judgment to include an award to Herring of $7,610.49 for
attorney’s fees. This award may be paid directly to plaintiff counsel if the United
States Department of Treasury determines that no federal debt is owed by Herring.1
ORDERED on September 15, 2022.

1

Herring filed a signed Contingent Fee Agreement. (Doc. 31-2). Under the contract, Herring waived
directed payment of the EAJA fees and assigned his rights to any EAJA fees to his attorney. (Id.).

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