Shay v. Commissioner of Social Security
ORDER: Plaintiff's Petition for Attorney Fees Pursuant to Equal Access to Justice Act 30 is GRANTED in the amount of $3,593.74. Signed by Judge Virginia M. Hernandez Covington on 11/21/2014. (AKH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:13-cv-2324-T-33EAJ
CAROLYN W. COLVIN, Acting
Commissioner of Social
This cause comes before the Court pursuant to Plaintiff
Mary Shay’s Unopposed Petition for Attorney Fees Pursuant to
Equal Access to Justice Act (Doc. # 30), filed on November
20, 2014. Mary Shay seeks an award of $3,593.74 in attorney’s
fees. For the reasons that follow, the Court grants the
Eligibility for Award of Fees
The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
requires an award of attorney’s fees and costs to any party
prevailing in litigation against the United States, including
Administration Agency action, unless the Court determines
that the position of the United States was substantially
justified or that special circumstances exist and make an
28 U.S.C. § 2412(d)(1)(A).
attorney’s fees against the government provided the party
meets five requirements: (1) the party seeking the award is
the prevailing party, (2) the application for such fees,
including an itemized justification for the amount sought, is
timely filed, (3) the claimant had a net worth of less than
$2 million at the time the complaint was filed, (4) the
position of the government was not substantially justified,
and (5) there are no special circumstances which would make
an award unjust.
See 28 U.S.C. § 2412(d)(1) and (2).
The Judgment in this case reversed the final decision of
Security Act, 42 U.S.C. § 405(g). (Doc. # 29). "[A] party who
wins a sentence-four remand order is a prevailing party."
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
qualifies as the prevailing party in this action.
application for attorney’s fees within thirty days of final
judgment in the action. 28 U.S.C. § 2412(d)(1)(B). The thirty
day clock did not begin to run in this action until this
Court’s Judgment, entered September 8, 2014 (Doc. # 29),
became final, which would have occurred at the end of the
sixty day period for appeal provided under Rule 4(a)(1)(B),
Fed. R. App. P. See Shalala, 509 U.S. at 302. Shay’s Motion
was filed on November 20, 2014, and included an itemized
justification for the amount sought. (Doc. ## 30, 30-1).
Therefore, the Court finds Shay’s application for attorney’s
fees to be timely.
Claimant’s Net Worth
Shay’s Motion asserts that she is an individual whose
“net worth at the time this proceeding was filed was less
than two million dollars.” (Doc. # 30 at 2). The Commissioner
does not contest this assertion. Accordingly, the Court finds
this requirement to be satisfied.
Lack of Substantial Justification
The burden of proving substantial justification is on
the government. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th
Cir. 1987). “Therefore, unless the Commissioner comes forth
and satisfies his burden, the government’s position will be
deemed not substantially justified.” Kimble ex rel. A.G.K. v.
Astrue, No. 6:11-cv-1063, 2012 WL 5877547, at *1 (M.D. Fla.
Nov. 20, 2012). In this case, the Commissioner does not
dispute the issue of substantial justification.
No Special Circumstances
Finally, the Commissioner has not made a claim that any
awarding of fees. Accordingly, the Court finds no special
circumstances indicating an award of fees would be unjust.
Amount of Fees
Having determined that Shay is eligible for an award of
fees under the EAJA, the Court now turns to the reasonableness
of the amount of fees sought. Shay requests an award of
$3,593.74 in attorney’s fees, representing 19.90 hours at an
hourly rate of $180.59 for work performed. (Doc. # 30 at 3).
The amount of attorney’s fees to be awarded “shall be
based upon the prevailing market rates for the kind and
quality of the service furnished,” except that attorney’s
determines an increase in the cost of living or a “special
2412(d)(2)(A). The Court accepts Shay’s contention that a
statutory cost of living adjustment in the hourly rate is
appropriate. Shay proposes an hourly rate of $180.59 for 2013,
and the Commissioner does not oppose this proposed hourly
Shay seeks an award based on a total of 19.90 hours of
The Court believes 19.90 hours of attorney
time is reasonable in this case.
Therefore, the Court finds
$3,593.74 is a reasonable fee in this case.
Payment of Fees
The Supreme Court established in Astrue v. Ratliff, 560
U.S. 586 (2010), that EAJA payments may be made directly to
a plaintiff’s attorney only in cases in which the plaintiff
does not owe a debt to the government and the plaintiff has
assigned the right to EAJA fees to his attorney. In the
Motion, Shay submits that “[a]ny payments shall be made
payable to Plaintiff and delivered to Plaintiff’s counsel
unless Plaintiff does not owe a federal debt. If the United
States Department of Treasury determines that Plaintiff does
Plaintiff’s assignment of EAJA form and pay fees directly to
Plaintiff’s counsel.” (Doc. # 30 at 3). As such, the Court
will leave to the parties the determination of to whom the
fees shall be paid.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff’s Petition for Attorney Fees Pursuant to Equal
Access to Justice Act (Doc. # 30) is GRANTED in the amount of
DONE and ORDERED in Chambers in Tampa, Florida, this
21st day of November, 2014.
Copies: All Counsel of Record
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