Peardon v. Commissioner of Social Security

Filing 31

ORDER granting 28 Motion for Attorney Fees to the extent that it seeks an award of attorney's fees in the amount of $2,628.66 and expenses in the amount of $38.66. Plaintiff is awarded attorney's fees in the amount of &# 036;2,628.66. Plaintiff is also awarded expenses in the amount of $38.66. In all other respects, the Motion is DENIED. Adopting Report and Recommendations - re 29 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 9/6/2017. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JOHN SCOTT PEARDON,
Plaintiff,
v.

Case No: 6:16-cv-219-Orl-41GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Consent Motion for Attorney’s Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“Motion,” Doc. 28). United States
Magistrate Judge Gregory J. Kelly submitted a Report and Recommendation (“R&R,” Doc. 29),
recommending that the Motion be granted in part. Specifically, Judge Kelly recommends that the
Court grant Plaintiff’s request for attorneys’ fees in the amount of $2,628.66 “and costs in the
amount of $38.66.” (Id. at 4 (emphasis added)). However, Judge Kelly recommends that the Court
deny the Motion to the extent that it asks the Court to order that attorneys’ fees be paid directly to
Plaintiff’s counsel pursuant to Plaintiff’s Affirmation and Waiver of Direct Payment of EAJA Fees
(Doc. 28-12 at 2). (Doc. 29 at 2–4).
The parties subsequently filed a Joint Notice of No Objection with One Requested
Correction (“Joint Notice,” Doc. 30). In the Joint Notice, the parties ask the Court to label the
$38.66 as an “expense,” rather than a “cost.” (Id. at 1). First, the parties maintain that the $38.66 1

1

This is the amount it cost to send the complaint and motion to proceed in forma pauperis
via Federal Express to the Clerk of Court for filing. (Doc. 28 at 2; Exhibit M, Doc. 28-13, at 2).

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sought in the Motion is an “expense,” not a “cost.” (Id.). Furthermore, because awards for “costs”
and “expenses” are processed through different government offices, the parties contend that the
$38.66 will not be paid out if it is labeled as a “cost” in the Court’s ruling. (Id.). As Judge Kelly
previously noted, “[t]he EAJA . . . authorizes the award of ‘costs’ and ‘expenses.’” (Doc. 29 at 3
(quoting Davis v. Apfel, 6:98-cv-651-Orl-22A, 2000 WL 1658575, at *4 (M.D. Fla. Aug. 14,
2000))). Moreover, Judge Kelly concluded that Plaintiff is entitled to the $38.66 spent to mail the
pleadings to the Clerk. Accordingly, the Court will grant the parties’ request—the $38.66 will be
identified as a reimbursable “expense.”
After a de novo review of the record, this Court otherwise agrees with the R&R. Therefore,
it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 29) is ADOPTED and CONFIRMED as
set forth herein.
2. Plaintiff’s Consent Motion for Attorney’s Fees Pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (Doc. 28) is GRANTED to the extent that it seeks
an award of attorney’s fees in the amount of $2,628.66 and expenses in the amount
of $38.66.
3. Plaintiff is awarded attorney’s fees in the amount of $2,628.66.
4. Plaintiff is also awarded expenses in the amount of $38.66.
5. In all other respects, the Motion is DENIED.
6. The Commissioner may, in her discretion, pay all or part of the attorney’s fees
directly to Plaintiff’s counsel should she determine that it is appropriate to do so.

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DONE and ORDERED in Orlando, Florida on September 6, 2017.

Copies furnished to:
Counsel of Record

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