Ordaz v. Commissioner of Social Security

Filing 27

ORDER: Plaintiff Surisaday Ordaz's Unopposed Amended Petition for Attorney's Fees (Doc. # 26 ) is GRANTED in the requested amount of $5,084.40. Signed by Judge Virginia M. Hernandez Covington on 6/20/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SURISADAY ORDAZ,
Plaintiff,
v.

CASE NO:

8:15-cv-2016-T-33TGW

NANCY BERRYHILL, Commissioner
of Social Security,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Surisaday Ordaz's Unopposed Amended Petition for Attorney's
Fees (Doc. # 26), filed on June 15, 2017.

Plaintiff is

seeking an award of $5,084.40 in attorney's fees and is not
seeking an award of costs.

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.
28 U.S.C. § 2412(d)(1)(A).

Under

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

and

remanded

the

case

for

further

consideration pursuant to sentence four of the Social Security
Act, 42 U.S.C. § 405(g). (Doc. ##

21, 22).

"[A] party who

wins a sentence-four remand order is a prevailing party."
Shalala

v.

Schaefer,

509

U.S.

292,

302

(1993).

Thus,

Plaintiff 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
judgment in the action. 28 U.S.C. § 2412(d)(1)(B).

This case

was remanded upon order of this Court on January 20, 2017.
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(Doc. # 22).

Pursuant to Federal Rule of Appellate Procedure

4(a)(1)(B), either party had 60 days from January 20, 2017, to
file an appeal (March 21, 2017). The judgment became final 30
days later on April 20, 2017. Plaintiff initially sought
attorney's fees in a timely Motion filed on April 20, 2017.
(Doc. # 23).

However, the Court denied the Motion without

prejudice due to failure to comply with Local Rule 3.01(g).
(Doc. # 25).

Plaintiff filed a renewed Motion for attorney's

fees on June 15, 2017.

Because the initial request for

attorney's fees was presented in timely manner, the Court
finds that the present Motion, which is unopposed, relates
back to the timely initial Motion and is therefore timely.
3.

Claimant's Net Worth

Plaintiff's

counsel

represents

to

the

Court

that

Phillips' net worth was less than $2 million at the time this
action was filed (Doc. # 26 at 3), and 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 [this] burden, the government's position will be
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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.
Court

finds

that

the

government's

position

Thus, the
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 Plaintiff is eligible for an award of

fees under the EAJA, the Court now turns to the reasonableness
of the amount of fees sought.

Plaintiff requests an award of

$5,084.40 in attorney's fees, representing 5.2 hours in 2015
at an hourly rate of $190.28; 17.7 hours in 2016 at an hourly
rate of $192.68; and 3.5 hours in 2017 at an hourly rate of
$195.57.
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
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increase in the cost of living or a "special factor" justifies
a higher fee award.
The

Court

28 U.S.C. § 2412(d)(2)(A)(ii).

determines

the

requested

hourly

rate

is

appropriate. Here, the proposed hourly rate is unopposed.
Thus, the Court will adopt the proposed hourly rate.

The

Court also determines that 26.4 hours of attorney time is
reasonable

in

this

case,

and

is

consistent

with

time

expenditures approved in other Social Security cases.
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 her attorney.

The parties

have not supplied the Court with information regarding whether
Plaintiff owes a debt to the federal government.

Based upon

this open issue, 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 Surisaday Ordaz's Unopposed Amended Petition
for Attorney's Fees (Doc. # 26) is GRANTED in the requested
amount of $5,084.40.
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DONE and ORDERED in Chambers, in Tampa, Florida, this
20th day of June, 2017.

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