Cottoy v. Commissioner of Social Security

Filing 33

ORDER granting 32 Plaintiff's Unopposed Petition for Attorney Fees; Clerk to enter judgment for fees. Signed by Magistrate Judge James R. Klindt on 11/25/2024. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DESTINY COTTOY,
Plaintiff,
v.

Case No. 8:23-cv-1652-JRK

MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.
ORDER
This cause is before the Court on Plaintiff’s Unopposed Petition for
Attorney Fees (Doc. No. 32; “Petition”), filed November 4, 2024. 1 In the Petition,
Plaintiff seeks an award of attorney’s fees pursuant to the Equal Access to
Justice Act (“EAJA”) in the amount of $6,237.81. Petition at 1-3; see also
Affidavit of Plaintiff’s Counsel (Doc. No. 32 pp. 5-6; “Affidavit”). Defendant does
not oppose the relief requested. See Petition at 2; Affidavit at 2.
According to the Petition and supporting documentation, Plaintiff’s
counsel expended a total of 25.50 hours in the representation of Plaintiff before
the Court, in the years 2023 and 2024. Itemization of Services Rendered by

The pages of the Petition and supporting documentation are unnumbered.
Citations are to the pagination assigned by the Court’s electronic filing system (CM/ECF).
1

Attorney (Doc. No. 32-1). 2 Plaintiff requests an hourly rate of $244.62. Petition
at 2. Plaintiff is seeking a higher hourly rate than the $125 specified by statute
based on the increase in the cost of living since 1996, when the attorney’s fee
rate was last adjusted by Congress. See 28 U.S.C. § 2412(d)(2)(A) (permitting
fee awards at rates higher than $125 per hour upon the Court’s determination
that cost of living has increased). Having examined the Consumer Price Index
and the representations made in the Petition, the Court concludes an increase
in inflation does justify a proportionate increase in attorney’s fees. 3 Further,
the number of hours expended is reasonable.
Plaintiff has assigned her rights to any entitlement of attorney’s fees due
under the EAJA to her counsel. See Assignment of EAJA Fees (Doc. No. 32-2).
Regarding the assignment, Plaintiff represents the following:
[A]fter the Court issues an order awarding EAJA fees, the
Commissioner will determine whether Plaintiff owes a debt to the
government. Any payments shall be made payable to Plaintiff and
delivered to Plaintiff’s counsel unless Plaintiff does not owe a
federal debt. If the United States Department of the Treasury
At one point in the Petition, Plaintiff’s counsel indicates a total of 27.1 hours
are being sought, Petition at 2, which appears to be in error. Multiplying that number by the
hourly rate sought of $244.62 produces a higher overall number than the requested $6,237.81.
The correct number of hours, totaling 25.5, appears on the Itemization of Services Rendered.
When those hours are multiplied by the hourly rate sought, the total is the requested
$6,237.81.
2

See U.S. Dep’t of Labor, Inflation Calculator, http://data.bls.gov/cgibin/cpicalc.pl (last visited November 25, 2024). In computing the hourly rate adjustment for
the cost of living increase, the Consumer Price Index is generally used for the year in which
the services were performed. See Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 710-13 (D.C.
Cir. 1997); see also Gates v. Barnhart, No. 5:01-cv-148-GRJ, 2002 WL 1452232, at *3 (M.D.
Fla. June 25, 2002) (unpublished).
3

2

determines that Plaintiff does not owe a federal debt[,] the
government may accept [] Plaintiff’s assignment of EAJA form and
pay fees directly to Plaintiff’s counsel.
Petition at 2-3.
Upon due consideration, it is
ORDERED:
1.

Plaintiff’s Unopposed Petition for Attorney Fees (Doc. No. 32) is

GRANTED.
2.

The Clerk of Court is directed to enter judgment in favor of Plaintiff

and against Defendant for attorney’s fees in the amount of $6,237.81 pursuant
to 28 U.S.C. § 2412(d).
3.

The Commissioner may exercise the discretion to honor Plaintiff’s

assignment of fees to counsel if the U.S. Department of Treasury determines
that Plaintiff does not owe a debt to the U.S. Government.
DONE AND ORDERED in Jacksonville, Florida on November 25, 2024.

kaw
Copies to:
Counsel of Record

3