Toonen v. Commissioner of Social Security

Filing 34

ORDER granting 33 Unopposed Petition for Attorney Fees. Attorney fees totaling $7,852.19 are awarded to Plaintiff. The Clerk of Court is directed to enter an amended judgment. Signed by Magistrate Judge Douglas N. Frazier on 5/22/2023. (brh)

Case 2:21-cv-00936-DNF Document 34 Filed 05/22/23 Page 1 of 4 PageID 1973

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTINE MARIE TOONEN,
Plaintiff,
v.

Case No.: 2:21-cv-936-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This cause is before the Court on Plaintiff Christine Marie Toonen’s
Unopposed Petition for Attorney Fees (Doc. 33). Plaintiff requests that the Court
enter an order awarding attorney fees in the amount of $7,852.19 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). For the reasons
explained below, the Court finds that Plaintiff’s request is due to be GRANTED.
In order for Plaintiff to receive an award of fees under EAJA, the following
five conditions must be established: (1) Plaintiff must file a timely application for
attorney 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 nontort 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

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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). The Commissioner does not contest that the five conditions
are met. Therefore, all the conditions for EAJA fees have been satisfied.
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. Jean v. Nelson, 863 F.2d 759, 773 (11th Cir. 1988). The resulting fee
carries a strong presumption that it is the reasonable fee. City of Burlington v. Daque,
505 U.S. 557, 562 (1992). Plaintiff’s counsel spent a total of 33.55 hours in EAJA
related representation of Plaintiff before this Court. (Doc. 33, p. 2-5). After
reviewing the description of services provided, the Court determines that 33.55
hours is reasonable in this case.
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 that an
increase in the cost of living or a special factor justifies a higher fee. 28 U.S.C. §
2412(d)(2)(A). Determination of the appropriate hourly rate is thus a two-step
process. 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

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v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985). Plaintiff is requesting hourly rates
of $217.54 for the year 2021, $234.95 for the year 2022, and $241.62 for the year
2023, for counsel in this case. (Doc. 33, p. 2). The Court finds these hourly rates are
reasonable. Accordingly, the Court will award Plaintiff’s attorney fees totaling
$7,852.19.
Plaintiff attached a Fee Agreement, Social Security Disability Federal Court
Claim. (Doc. 33-1). In the agreement, Plaintiff agrees to assign all awarded EAJA
fees to Plaintiff’s counsel. (Doc. 33, p. 1). Thus, the fees awarded should be paid
directly to counsel if the United States Department of Treasury determines that no
federal debt is owed by Plaintiff.
Accordingly, it is hereby ORDERED:
(1)

Plaintiff’s Unopposed Petition for Attorney Fees (Doc. 33) is
GRANTED.

(2)

Attorney fees totaling $7,852.19 are awarded to Plaintiff. The attorney
fees may be paid directly to Plaintiff’s counsel if the United States
Department of the Treasury determines that Plaintiff owes no federal
debt.

(3)

The Clerk of Court is directed to enter an amended judgment.

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DONE and ORDERED in Fort Myers, Florida on May 22, 2023.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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