Munger v. Commissioner of Social Security

Filing 26

ORDER: Plaintiff Penny Jo Munger's Unopposed Motion for Attorney's Fees Pursuant to 28 U.S.C. § 2412(d) (Doc. # 25 ) is GRANTED. Signed by Judge Virginia M. Hernandez Covington on 3/3/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PENNY JO MUNGER,
Plaintiff,
v.

Case No.

8:15-cv-2937-T-33AEP

NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff Penny
Jo Munger’s Unopposed Motion for Attorney’s Fees Pursuant to 28
U.S.C.

§

2412(d),

(Doc.

#

25),

filed

on

March

3,

2017.

Additionally, Munger has filed two affidavits in support of the
Motion,

describing

each

attorney’s

legal

background

and

time

dedicated to the case. (Doc. # 25 at 6-13; Doc. # 25-3). Munger is
seeking an award of $7,962.61 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
1

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. See 28 U.S.C. §
2412(d)(1) and (2).
1.

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. ## 23, 24). “[A] party who wins a sentence-four
remand order is a prevailing party.” Shalala v. Schaefer, 509 U.S.
292, 302 (1993). Thus, Munger 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 requirement has been met
2

here. This case was remanded upon order of this Court on February
21, 2017, (Doc. # 23); thereafter, Munger filed the unopposed
Motion seeking attorney’s fees on March 3, 2017. (Doc. # 25).
3.

Claimant’s Net Worth

Munger states that her net worth was less than $2 million at
the time this action was filed (Doc. # 25 at ¶ 8), 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 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.

Thus,

the

Court

finds

that

the

government’s position was not substantially justified.
5.

No Special Circumstances

Finally, the Commissioner has not made a claim that any
special circumstances exist that weigh against the awarding of
fees.

Accordingly,

the

Court

finds

no

special

indicating an award of fees would be unjust.

3

circumstances

B.

Amount of Fees
Having determined Munger is eligible for an award of fees

under the EAJA, the Court now turns to the reasonableness of the
amount of fees sought. Munger requests an award of $7,962.61 in
attorney’s fees, representing 41.50 attorney hours at an average
hourly rate of $191.87. (Doc. # 25 at 1-3).
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 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)(ii).
The

Court

appropriate.

determines

Here,

the

the

proposed

requested
hourly

rate

hourly
is

rate

is

approximately

$191.87. The Commissioner does not oppose Munger’s proposed hourly
rate. Thus, the Court will adopt the proposed rate. The Court also
determines that 41.50 hours of attorney time is reasonable in this
case. Therefore, the Court finds the requested fee of $7,962.61 to
be a reasonable fee.
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
4

right to EAJA fees to her attorney. Munger has assigned the right
to the attorney’s fees to her attorney. (Doc. # 25-1). The parties
agree that after the Court grants the Motion for attorney’s fees,
the Commissioner will determine whether Magi owes a debt to the
government. “If the U.S. Department of the Treasury determines
that [Munger] does not owe a federal debt, the government will
accept [Munger]’s assignment of EAJA fees and pay fees directly to
[Munger]’s counsel.” (Doc. # 25 at ¶ 12). 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 Penny Jo Munger’s Unopposed Motion for Attorney’s
Fees Pursuant to 28 U.S.C. § 2412(d) (Doc. # 25) is GRANTED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 3rd day
of March, 2017.

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