Fitzgibbon v. Commissioner of Social Security

Filing 24

ORDER granting 23 Plaintiff's Consent Petition for Attorney Fees. Signed by Magistrate Judge Julie S. Sneed on 10/18/2016. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DIANE LOUISE FITZGIBBON,
Plaintiff,
v.

Case No: 8:15-cv-706-T-JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER ON PLAINTIFF’S CONSENT PETITION FOR ATTORNEY’S FEES
THIS MATTER is before the Court on Plaintiff’s Consent Petition for Attorney’s Fees
(Dkt. 23). Plaintiff moves the Court to award her attorney’s fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d). For the reasons stated below, Plaintiff’s Petition is
granted.
BACKGROUND
On March 26, 2015, Plaintiff filed a Complaint seeking review of the denial of her claim
for Social Security benefits by the Commissioner of Social Security. (Dkt. 1.) The Court entered
an Order on Plaintiff’s Complaint, finding that the Commissioner’s decision did not employ proper
legal standards and remanding this case to the Commissioner for further administrative
proceedings under sentence four of 42 U.S.C. § 405(g). (Dkt. 21.) Judgment was entered on
August 3, 2016. (Dkt. 22.) Consequently, Plaintiff filed her Petition for Attorney’s Fees on
September 29, 2016, as the prevailing party in this action. (Dkt. 23.) In her Petition, Plaintiff
seeks attorney’s fees for 20.5 hours of work in 2015 and 1.5 hours of work in 2016 at an hourly
rate of $189.78 for attorney Chantal Harrington. The fees total $4,175.16. The Commissioner
does not oppose the relief requested. (Dkt. 23 ¶ 8.)

APPLICABLE STANDARDS
Following entry of a favorable judgment in a Social Security case, a prevailing party may
obtain attorney’s fees under the EAJA. 28 U.S.C. § 2412(d)(1)(A); Monroe v. Comm’r of Soc.
Sec. Admin., 569 F. App’x 833, 834 (11th Cir. 2014). The EAJA requires the court to award
attorney’s fees to a party who prevails against the United States in litigation unless the court finds
that the government’s position in the litigation was “substantially justified” or that special
circumstances make such an award unjust. 28 U.S.C. § 2412(d); Jackson v. Comm’r of Soc. Sec.,
601 F.3d 1268, 1271 (11th Cir. 2010).
A party may recover an award of attorney’s fees under the EAJA if the following
prerequisites are met: (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 (i.e., filed
within thirty days of final judgment in the action); (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) no special circumstances exist that would make an award unjust. 28 U.S.C. §
2412(d). A party who obtains a fourth sentence remand in a Social Security case is considered a
prevailing party under the EAJA. Shalala v. Schaefer, 509 U.S. 292, 302 (1993). To be
“substantially justified” under the EAJA, the government’s position must be “justified to a degree
that could satisfy a reasonable person,” which requires that the government’s position have a
reasonable basis in both law and fact. Monroe, 569 F. App’x at 834 (internal quotation and citation
omitted).
ANALYSIS
Upon consideration of Plaintiff’s Petition and the applicable law, the Court finds that
Plaintiff is entitled to an award of attorney’s fees in this case. First, Plaintiff is the prevailing party

-2-

in this case after having obtained a sentence-four remand. Schaefer, 509 U.S. at 302. Second,
Plaintiff’s Petition, which was filed on September 29, 2016, was timely filed within thirty days of
the final judgment in this action. This case was remanded with judgment entered on August 3,
2016. (Dkt. 22.) Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B), either party has
sixty days to file an appeal. Therefore, the judgment became final on October 2, 2016, and the
Petition was filed prior to the expiration of the thirty-day deadline of November 1, 2016. See Jones
v. Colvin, No. 8:13-CV-2900-T-33AEP, 2015 WL 7721334, at *1 (M.D. Fla. Nov. 30, 2015).
Additionally, the Commissioner does not dispute the timeliness of the Petition. Third, there is no
indication that Plaintiff is excluded from eligibility for an award under the EAJA by any of the
exclusions set forth in the Act. Fourth, the Commissioner’s position was not substantially justified
in this case, and the Commissioner does not dispute this issue. Finally, the Court does not find
that any special circumstances exist to indicate that an award of attorney’s fees in this case would
be unjust.
In the Petition, Plaintiff requests that the hourly rate of the fees awarded be increased to
reflect the increase in the cost of living. Under the EAJA, the amount of attorney’s fees to be
awarded “shall be based upon prevailing market rates for the kind and quality of the services
furnished,” except that attorney’s fees shall not exceed $125 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). Plaintiff proposes an hourly rate of $189.78 for attorney Chantal Harrington. The
Court finds that Plaintiff is entitled to an increase in the fees awarded, and the Commissioner does
not oppose Plaintiff’s request. In total, Plaintiff seeks $4,175.16 in attorney’s fees for 22 hours of
attorney time expended in litigating this case, which is represented in Plaintiff’s itemization of the
hours expended and the activities performed. (Dkt. 23-1.) The Commissioner does not oppose

-3-

the fees requested. As such, the Court finds that 22 hours is reasonable and that $4,175.16 is a
reasonable fee in this case.
Finally, Plaintiff requests that the fee award be paid directly to Plaintiff’s attorney.
Although EAJA fee awards belong to the party, not the party’s attorney, Reeves v. Astrue, 526
F.3d 732, 738 (11th Cir. 2008), such fees may be paid directly to a plaintiff’s attorney in cases in
which the plaintiff does not owe a debt to the government and assigns the right to such fees to the
attorney. Astrue v. Ratliff, 560 U.S. 586, 597 (2010). In this case, Plaintiff has assigned the EAJA
award to her attorneys. (Dkt. 23-2.) Therefore, the award is payable directly to Plaintiff’s counsel
if Plaintiff is not indebted to the federal government; otherwise, the award is payable directly to
Plaintiff. Accordingly, it is
ORDERED:
1.

Plaintiff’s Consent Petition for Award of Attorney’s Fees (Dkt. 23) is GRANTED.

2.

Plaintiff is awarded $4,175.16 in attorney’s fees, payable directly to Plaintiff’s

counsel if the Commissioner determines that Plaintiff does not owe a debt to the government.
DONE and ORDERED in Tampa, Florida on October 18, 2016.

Copies furnished to:
Counsel of Record

-4-