Duelfer v. Commissioner of Social Security

Filing 20

ORDER granting 19 Motion for EAJA Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 8/10/2015. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GEORGE DUELFER,
Plaintiff,
v.

Case No: 6:14-cv-1909-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
This matter is before the Court on Plaintiff’s Unopposed Motion for Attorney Fees
pursuant to the Equal Access to Justice Act (Doc. 19). On June 25, 2015, the Court
entered an order granting Defendant’s unopposed motion to remand the case for further
proceedings pursuant to sentence four of 42 U.S.C. § 405(g) (Doc. 16). The Clerk
entered judgment the next day (Doc. 17).
Plaintiff requests an award of attorney’s fees in the amount of $5,154.40 under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412(d). Under the EAJA, a party is
eligible for an attorney fee award where: (1) the party is the prevailing party in a non-tort
suit involving the United States; (2) the Government’s position was not substantially
justified; (3) the party filed a timely application for attorney’s fees; (4) the party had a net
worth of less than $2 million when 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).
Plaintiff asserts that he is the prevailing party in this litigation, that Defendant’s position in
1 The parties consented to referral of this case to a United States magistrate judge and on
February 24, 2015, the district judge referred the case to the magistrate to conduct all proceedings and
order the entry of final judgment (Doc. 13).

the underlying litigation was not substantially justified, and that his net worth at the time
this action was filed was less than $2 million (Doc. 19, ¶¶ 3–5 ).
The schedule of hours attached to the petition confirms the attorney’s claimed
billable hours. (Doc. 19 at 5). Counsel seeks payment at the rate of $189.50 based
upon the maximum statutory fee of $125, as adjusted upward based upon cost-of-living
increases since Congress set the amount in March, 1996 as part of the Contract with
America Advancement Act of 1996, Pub.L. 104-121, §§ 231-233. The Court finds that
the hours claimed and the proposed hourly rate for the services provided are both
reasonable.
Plaintiff has attached a copy of his assignment of EAJA fees to Osterhout Disability
Law, LLC (Doc. 19 at 6). In light of the assignment, Plaintiff requests that the payment
should be made payable to Plaintiff and delivered to Plaintiff’s counsel unless Plaintiff
owes a federal debt (Doc. 19, ¶ 10). If the U.S. 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 (Id.).
Upon due consideration, Plaintiff’s motion is GRANTED and Plaintiff is awarded
attorney fees in the amount of $5,154.40 made payable to Plaintiff and delivered to
Osterhout Disability Law, LLC, if the Government determines that Plaintiff does not owe it
a debt.
DONE and ORDERED in Orlando, Florida on August 10, 2015.

Copies furnished to Counsel of Record

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