Nottingham v. Commissioner of Social Security

Filing 28

ORDER granting 27 Plaintiff's Unopposed Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Attorney's fees in the total amount of $5,470.40 shall be awarded to Plaintiff pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by Magistrate Judge Carol Mirando on 7/14/2018. (DRS)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MARY L. NOTTINGHAM, Plaintiff, v. Case No: 6:16-cv-2050-Orl-CM COMMISSIONER OF SOCIAL SECURITY, Defendant. ORDER This matter comes before the Court upon review of Plaintiff’s Unopposed Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”) filed on May 4, 2018. Doc. 27. Plaintiff moves pursuant to the EAJA for an award of attorney’s fees in the amount of $5,470.40. 1. Doc. 27 at Plaintiff includes an itemization of time confirming a total of 28.4 hours of attorney time performed in 2016, 2017 and 2018 expended at the hourly rate of $192.62. Id.; Doc. 27-1 at 2-3; Doc. 27-2 at 3-4. Plaintiff states the Commissioner does not oppose the requested relief. Doc. 27 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 two million dollars 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 February 7, 2018, the 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). 9, 2018. Doc. 26. Doc. 25. Judgment was entered on February Plaintiff asserts that the Commissioner’s position in the underlying action was not substantially justified, and that Plaintiff’s net worth at the time this proceeding was filed was less than two million dollars. Doc. 27 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). process. 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 performed during 2016, 2017 and 2018. Doc. 27-1. Because the Commissioner does not object -2- to the adjusted hourly rate sought and it is within the rates permitted by the EAJA, the Court finds $192.62 for 2016, 2017 and 2018 is an appropriate and reasonable hourly rate for those years. Plaintiff’s counsel also has submitted a schedule of hours that includes an itemization of legal services performed. Doc. 27-2 at 3-4. After reviewing the description of the services provided, the Court also concludes the time is reasonable and properly compensable. ACCORDINGLY, it is ORDERED: 1. Plaintiff’s Unopposed Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Doc. 27) is GRANTED. Attorney’s fees in the total amount of $5,470.40 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 $5,470.40 under the EAJA, 28 U.S.C. § 2412(d). DONE and ORDERED in Fort Myers, Florida on this 14th day of July, 2018. Copies: Counsel of record -3-

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