Colon v. Commissioner of Social Security

Filing 30

ORDER granting 29 Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The Clerk is directed to enter judgment for Plaintiff as to attorney's fees in the amount of $4,171.05 and costs in the amount of $38.57 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). See Order for details. Signed by Magistrate Judge Carol Mirando on 4/6/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NEFTHALI COLON,
Plaintiff,
v.

Case No: 6:16-cv-814-Orl-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for
Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc.
29) filed on March 28, 2017.

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
$4,171.05 and costs in the amount of $38.57.

Doc. 29 at 1.

Plaintiff attaches an

itemization of time confirming a total of 40.70 hours, 1.1 hours at the rate of $191.86
per hour and 39.60 hours at the rate of $100.00 per hour for the year 2016.
6.

Id. at 5-

Plaintiff represents that the Commissioner consents to the requested relief.

Id.

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).
In this case, on January 18, 2017, this Court entered an 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.
2017.

Doc. 28.

Judgment was entered on January 20,

Plaintiff also asserts that the Commissioner’s position in the

underlying action was not substantially justified, and that his net worth at the time
this proceeding was filed was less than two million dollars.

Doc. 29 at 3.

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.
§2412(d)(2)(A).
process.

28 U.S.C.

Determination of the appropriate hourly rate is thus a two-step

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 she performed
in 2016.

Doc. 29 at 3-4.

Because the Commissioner does not object to the adjusted

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hourly rate sought and it is within the rates permitted by the EAJA, the Court finds
that $191.86 per hour for the year 2016 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.

Docs. 29-3 at 2-4; 29-4 at 2; 29-5 at 2; 29-6 at 2; 29-7 at

2; 29-8 at 2; 29-9 at 2; 29-10 at 2; 29-11 at 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 Motion for Attorney’s Fees Pursuant to the Equal Access to

Justice Act, 28 U.S.C. § 2412 (Doc. 29) is GRANTED.

Attorney’s fees in the total

amount of $4,171.05 and costs in the amount of $38.57 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

in the amount of $4,171.05 and costs in the amount of $38.57 under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d).
DONE and ORDERED in Fort Myers, Florida on this 6th day of April, 2017.

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Copies:
Counsel of record

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