Cacheiro v. Commissioner of Social Security
Filing
20
ORDER granting 19 Motion for Attorney's Fees. Signed by Magistrate Judge Julie S. Sneed on 7/17/2017. (SMC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DANEA MARIE CACHEIRO,
Plaintiff,
v.
Case No: 8:16-cv-2643-T-JSS
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney’s Fees Pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412 (“Motion”). (Dkt. 19.) Defendant does not
oppose the relief requested by Plaintiff. (Dkt. 19 at 2.) For the reasons that follow, the Motion is
granted.
BACKGROUND
On September 14, 2016, Plaintiff filed a Complaint seeking review of the denial of her
claim for Social Security benefits by the Commissioner of Social Security. (Dkt. 1.) Subsequent
to Plaintiff filing her memorandum of law in opposition to the Commissioner’s decision, the
Commissioner filed a Motion for Entry of Judgment with Remand.
(Dkts. 16, 17.)
The
Commissioner sought remand for further action pursuant to sentence four of 42 U.S.C. § 405(g).
(Dkt. 17.) Accordingly, the Court entered an Order reversing the Commissioner’s decision
denying Plaintiff’s disability application and remanding the matter for further administrative
proceedings under sentence four of 42 U.S.C. § 405(g). (Dkt. 18.) This case was closed on April
4, 2017. Consequently, Plaintiff filed her Motion on June 26, 2017, as the prevailing party in this
action. (Dkt. 19.) In her Motion, Plaintiff seeks attorney’s fees for 19.6 hours of work in 2017 at
an hourly rate of $191.86 by attorney Suzanne Harris and 1.9 hours of work in 2017 at an hourly
rate of $191.86 by attorney Peter Helwig. (Dkt. 19 at 4.) Plaintiff further seeks fees for 12.6 hours
of paralegal services at an hourly rate of $75. The fees total $5,069.99. The Commissioner does
not oppose the relief requested. (Dkt. 19 at 2.)
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 Fed. 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
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reasonable basis in both law and fact. Monroe, 569 Fed. App’x at 834 (internal quotation and
citation omitted).
ANALYSIS
Upon consideration of Plaintiff’s Motion 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
in this case after having obtained a sentence-four remand. Schaefer, 509 U.S. at 296–97, 302.
Second, Plaintiff’s Motion, which was filed on June 26, 2017, was timely filed within thirty days
of the final judgment of this action. This case was remanded upon order of this Court on April 3,
2017. (Dkt. 18.) 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 June 2, 2017, and the Motion
was filed prior to the expiration of the thirty-day deadline of July 3, 2017. 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 Motion. Third, Plaintiff’s Motion asserts
that Plaintiff is not 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 Motion, 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 $191.86 for work performed by attorneys
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Suzanne Harris and Peter Helwig. (Dkt. 19 at 4.) Plaintiff further proposes an hourly rate of $75
for work performed by paralegals and attorneys not admitted to the Middle District of Florida.
(Dkt. 19 at 4.) Paralegal services are recoverable under the EAJA at prevailing market rates.
Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 581 (2008). Plaintiff contends that according
to The Association of Legal Assistants 2015 National Utilization and Compensation Survey
Report, the average paralegal rate in the Southeast is $128. (Dkts. 19 at 4, 19-2.) The Court finds
that Plaintiff is entitled to the requested rates, and the Commissioner does not oppose Plaintiff’s
request. In total, Plaintiff seeks $5,069.99 in fees for 34.1 hours of attorney and paralegal time
expended in litigating this case, which is represented in Plaintiff’s itemization of the hours
expended and the activities performed. (Dkt. 19-3.) The Commissioner does not oppose the fees
requested. As such, the Court finds that 34.1 hours is reasonable and that $5,069.99 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 attorney. (Dkt. 19-14.) Plaintiff indicates that Defendant does not oppose the
payment of fees directly to Plaintiff’s attorney, provided that Plaintiff does not owe a debt to the
federal government. 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.
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Accordingly, it is
ORDERED:
1. Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (Dkt. 19) is GRANTED.
2. Plaintiff is awarded $5,069.99 in 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 July 17, 2017.
Copies furnished to:
Counsel of Record
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