Hogarth v. Commissioner of Social Security
Filing
28
ORDER: Plaintiff Michael Hogarth's Consent Petition for Attorney Fees (Doc. # [27[) is GRANTED in the amount of $6,295.05. Signed by Judge Virginia M. Hernandez Covington on 11/15/2017. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL HOGARTH,
Plaintiff,
v.
CASE NO:
8:16-cv-797-T-33AAS
Commissioner
of Social Security,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Michael Hogarth's Consent Petition for Attorney Fees (Doc. #
27), which was filed on November 14, 2017.
Plaintiff is
seeking an award of $6,295.05 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. ##
25-26).
"[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 August 16, 2017.
-2-
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B),
either party had 60 days to file an appeal.
The judgment
became
request
final
attorney's
on
fees
October
was
16,
presented
deadline of November 15, 2017.
2017,
in
and
the
advance
of
the
for
30-day
Thus, the application is
timely.
3.
Claimant's Net Worth
Plaintiff's
counsel
represents
to
the
Court
that
Hogarth's net worth was less than $2 million at the time this
action was filed (Doc. # 27 at 1), 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.
Court
finds
that
the
government's
substantially justified.
-3-
position
Thus, the
was
not
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
$6,295.05, for 31.6 hours by attorney Sara Bohr and 1 hour by
attorney Stephan John Freeman. Counsel charged $192.68 per
hour in 2016 and charged $198.15 per hour in 2017.
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 determines the requested hourly rates are
appropriate and the Commissioner does not oppose the proposed
hourly rates.
The Motion includes a detailed discussion of
cost of living computations for 2016 and 2017. (Doc. # 27 at
2).
Thus, the Court will adopt the proposed hourly rates.
-4-
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
Hogarth 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 Michael Hogarth's Consent Petition for Attorney
Fees (Doc. #
27) is GRANTED in the amount of $6,295.05.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of November, 2017.
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