Hicks v. Commissioner of Social Security

Filing 18

ORDER: Plaintiff's Uncontested Petition for Attorney Fees Pursuant to Equal Access to Justice Act 17 is GRANTED in the amount of $768.05. Signed by Judge Virginia M. Hernandez Covington on 12/1/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JEFFREY MARTIN HICKS,
Plaintiff,
v.

Case No. 8:14-cv-1733-T-33TBM

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
____________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Jeffrey Martin Hicks’ Uncontested Petition for Attorney Fees
Pursuant to Equal Access to Justice Act (Doc. # 17), filed on
December

1,

2014.

Hicks

seeks

an

award

of

$768.05

in

attorney’s fees. For the reasons that follow, the Court grants
the Motion.
A.

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
proceedings

for

judicial

review

of

Social

Security

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
award unjust.
Under

28 U.S.C. § 2412(d)(1)(A).

the

EAJA,

a

party

may

recover

an

award

of

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.
1.

See 28 U.S.C. § 2412(d)(1) and (2).

Prevailing Party

The Judgment in this case reversed the final decision of
the

Commissioner

consideration

and

pursuant

remanded
to

the

sentence

case
four

for

of

the

further
Social

Security Act, 42 U.S.C. § 405(g). (Doc. # 15). "[A] party who
wins a sentence-four remand order is a prevailing party."
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).

Thus, Hicks

qualifies as the prevailing party in this action.
2.

Timely Application

The

EAJA

requires

a

prevailing

party

to

file

an

application for attorney’s fees within thirty days of final

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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 November 26, 2014 (Doc. # 16),
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. Hicks’ Motion
was filed on December 1, 2014, and included an itemized
justification for the amount sought. (Doc. ## 17, 17-1).
Therefore, the Court finds Hicks’ application for attorney’s
fees to be timely.
3.

Claimant’s Net Worth

Hicks’ Motion asserts that his “net worth at the time
this proceeding was filed was less than two million dollars.”
(Doc. # 17 at 2). The Commissioner does not contest this
assertion. Accordingly, the Court finds this requirement to
be satisfied.
4.

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.

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Nov. 20, 2012). In this case, the Commissioner does not
dispute the issue of substantial justification.
Court

finds

that

the

government’s

Thus, the

position

was

not

substantially justified.
5.

No Special Circumstances

Finally, the Commissioner has not made a claim that any
special

circumstances

exist

that

countenance

against

the

awarding of fees. Accordingly, the Court finds no special
circumstances indicating an award of fees would be unjust.
B.

Amount of Fees
Having determined that Hicks is eligible for an award of

fees under the EAJA, the Court now turns to the reasonableness
of the amount of fees sought. Hicks requests an award of
$768.05 in attorney’s fees, representing 4.1 hours at an
hourly rate of $189.77 for work performed. (Doc. # 17 at 2).
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
fees

shall

not

exceed

$125

per

hour

unless

the

Court

determines an increase in the cost of living or a “special
factor”

justifies

a

higher

fee

award.

28

U.S.C.

§

2412(d)(2)(A). The Court accepts Hicks’ contention that a
statutory cost of living adjustment in the hourly rate is

4

appropriate. “The hourly statutory cap of $125.00 should be
increased due to the increase in the cost of living which has
occurred since the EAJA was reenacted on March 29, 1996.”
(Doc. # 17 at 8). The Commissioner does not oppose this
proposed hourly rate.
Hicks seeks an award based on a total of 4.1 hours of
attorney time.

The Court believes 4.1 hours of attorney time

is reasonable in this case.

Therefore, the Court finds

$768.05 is a reasonable fee in this case.
C.

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, Hicks submits that “Plaintiff assigned his right to
attorney fees to Richard A. Culbertson. The parties have
agreed that after the Court issues an order awarding EAJA
fees to Plaintiff, the Commissioner will determine whether
Plaintiff

owes

a

debt

to

the

government.

If

the

U.S.

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

5

counsel.” (Doc. # 17 at 2). 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

Uncontested

Petition

for

Attorney

Fees

Pursuant to Equal Access to Justice Act (Doc. # 17) is GRANTED
in the amount of $768.05.
DONE and ORDERED in Chambers in Tampa, Florida, this 1st
day of December, 2014.

Copies: All Counsel of Record

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