O'Connor v. Commissioner of Social Security

• Court: District Court, M.D. Florida
• Decided: January 2, 2025
• Docket: 6:23-cv-01045
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

MICHAEL O’CONNOR,

Plaintiff,

v. Case No. 6:23-cv-1045-JRK

CAROLYN W. COLVIN, Acting Commissioner of Social Security,1

Defendant. / ORDER This cause is before the Court on Plaintiff’s Unopposed Motion for Attorney’s Fees (Doc. No. 20; “Motion”), filed December 16, 2024. In the Motion, Plaintiff seeks an award of attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”) in the amount of $3,898.17, and reimbursement of the filing fee in the amount of $402.00. Motion at 1-3, 5. Plaintiff represents that Defendant does not oppose the relief requested. Id. at 3. Plaintiff’s counsel indicates a total of 15.9 hours were expended by two attorneys in the representation of Plaintiff before the Court: 0.9 hours by

1 Carolyn W. Colvin became the Acting Commissioner of Social Security on November 30, 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is substituted for Martin O’Malley as Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). attorney Richard A. Culbertson; and 15 hours by attorney Sarah P. Jacobs. Id. at 2, 7; see id. at 11-12 (attached Schedules of Hours). Plaintiff requests an

hourly rate of $244.62 for hours from 2023 and $251.32 for hours from 2024. Id. at 2, 7. 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 Motion, the Court concludes an increase in inflation does justify a proportionate increase in

attorneys’ fees.1 Further, the number of hours expended is reasonable. Plaintiff also requests reimbursement of $402.00 in costs expended for the filing of the Complaint (Doc. No. 1). Motion at 1, 3, 10. Defendant does not oppose this request, and the Court finds it to be appropriate. See 28 U.S.C.

§§ 1920, 2412(a)(1).

1 See U.S. Dep’t of Labor, Inflation Calculator, http://data.bls.gov/cgi- bin/cpicalc.pl (last visited December 30, 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). Plaintiff has assigned his rights to any entitlement of attorney’s fees due under the EAJA to his counsel. Motion at 2; Retainer Agreement (Doc. No. 20-

1). Plaintiff represents as follows regarding the assignment: [A]fter the Court issues an order awarding EAJA fees to Plaintiff, the Commissioner will determine whether Plaintiff owes a debt to the government. If the U.S. Department of the Treasury determines that Plaintiff does not owe a federal debt, the government will accept Plaintiff’s assignment of EAJA Fees and pay fees directly to Plaintiff’s counsel.

Motion at 2. In light of the foregoing, it is ORDERED: 1. Plaintiff’s Unopposed Motion for Attorney’s Fees (Doc. No. 20) 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 $3,898.17 pursuant to 28 U.S.C. § 2412(d), and for costs in the amount of $402.00. 3. The Commissioner may exercise the discretion to honor Plaintiffs 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 January 2, 2025.

Trewin Boo K Reel JAMES R. KLINDT United States Magistrate Judge

kaw Copies to: Counsel of Record