Barker v. Commissioner of Social Security

Filing 30

ORDER granting 29 Plaintiff's Unopposed Motion for Attorney's Fees. See Order for details. Signed by Magistrate Judge Carol Mirando on 7/8/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BRANDON ANDREW BARKER,
Plaintiff,
v.

Case No: 6:15-cv-159-Orl-22TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Attorney’s Fees (Doc. 29),
filed on June 24, 2016. Plaintiff moves pursuant to the Equal Justice Act (“EAJA”),
28 U.S.C. § 2412(d), for an award of attorney’s fees in the amount of $4,446.00 and
costs in the amount of $350.00, which totals $4,796.00. Doc. 29 at 2. Plaintiff
attaches an itemization of time confirming a total of 23.40 hours at the rate of $190.00
per hour. Doc. 29-2 at 1. Plaintiff represents that the Commissioner has no objection
to the Motion or relief requested. Doc. 29 at 2. For the reasons stated herein, the
Motion 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).
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In this case, on March 26, 2016, 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). Doc. 27. Judgment was entered on
March 28, 2016. Doc. 28. Plaintiff also asserts that the Commissioner’s position in
the underlying action was not substantially justified, and that her net worth at the
time this proceeding was filed was less than two million dollars. Doc. 29 at 1. 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. 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

v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985).
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 he performed
in 2015 and 2016. Because the Commissioner does not object to the adjusted hourly
rate sought and it is within the rates permitted by the EAJA, the Court finds that

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$190.00 per hour is an appropriate and reasonable hourly rate. Plaintiff’s counsel
also has submitted a schedule of hours that include an itemization of legal services
performed. Doc. 29-2. 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 Unopposed Motion for Attorney’s Fees (Doc. 29) is GRANTED.

Attorney’s fees and costs in the total amount of $4,796.00 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.
2.

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

and costs in the amount of $4,796.00 under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 8th day of July, 2016.

Copies:
Counsel of Record

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