UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 22-21723-CIV-MORENO/GOODMAN
SIMON URENA,
Plaintiff, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant. _______________________________________/
REPORT AND RECOMMENDATIONS ON PLAINTIFF’S NEGOTIATED FEES MOTION
In this social security benefits action, Simon Urena (“Plaintiff”) filed a Motion for Attorney’s Fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. [ECF No. 27]. After Plaintiff filed his motion, the parties negotiated a fee amount. See Defendant’s Response to Plaintiff’s Motion for Attorney’s Fees Pursuant to the EAJA (D.E. 27) [ECF No. 30, p. 1 (“After a negotiation with opposing counsel, Defendant submits that the parties have reached an agreement as to a reasonable fee in this matter.”)]. According to the Clerk’s directive in these types of administrative appeals, all pretrial, non-dispositive matters have been referred to the Undersigned. [ECF No. 2]. Under the EAJA, the Court has discretion to require a defendant to pay the plaintiff's attorney’s fees when the plaintiff is the prevailing party. For the reasons
discussed below, the Undersigned respectfully recommends that the District Court grant in part Plaintiff’s motion and award Plaintiff the agreed upon amount of $11,337.08 in attorney’s fees and $402.00 in costs.
I. BACKGROUND Plaintiff initiated this action for judicial review of a final decision of the Commissioner of Social Security on June 6, 2022. [ECF No. 1]. Plaintiff and Defendant
filed cross-motions for summary judgment. [ECF Nos. 19; 23]. The Undersigned issued a Report and Recommendations on the parties’ summary judgment motions [ECF No. 25], recommending that Plaintiff’s summary judgment motion be granted and that the matter be remanded pursuant to 42 U.S.C. § 405(g), for further consideration. Senior United
States District Judge Federico A. Moreno adopted the Report and Recommendations [ECF No. 26] and remanded the case back to the Commissioner. Plaintiff then filed the instant fees motion. [ECF No. 27].
II. DISCUSSION A. Entitlement to Attorney’s Fees A prevailing party is not ordinarily entitled to recover attorney’s fees from his or her opponent. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
However, the EAJA explicitly provides that “a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs.” 42 U.S.C. § 2412(d)(1)(A) (emphasis added).
The EAJA empowers the Court to grant “reasonable fees and expenses of attorneys.” McCullough v. Astrue, No. 08-61954-CIV, 2009 WL 2461798, at *1 (S.D. Fla. Aug. 10, 2009) (quoting 28 U.S.C. § 2412(b)). The Court may award a prevailing plaintiff
attorney’s fees and expenses unless the Commissioner can show that her position “was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
Here, because Plaintiff obtained a judgment in his favor, he is the prevailing party for purposes of the EAJA. See Escalona v. Kijakazi, No. 1:21-CV-20652-KMM, 2022 WL 18356253, at *1 (S.D. Fla. Dec. 30, 2022), report and recommendation adopted, No. 1:21-CV- 20652-KMM, 2023 WL 199373 (S.D. Fla. Jan. 17, 2023) (“[The] [p]laintiff is the prevailing
party in this litigation, as the Court remanded this case to the Commissioner of Social Security for further proceedings after granting summary judgment in favor of [the] [p]laintiff.”). Further, Defendant does not dispute Plaintiff’s entitlement to attorney’s
fees. Thus, the Undersigned finds that Plaintiff is entitled to receive attorney’s fees under the EAJA. B. Amount of Attorney’s Fees The EAJA provides that:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) attorney fees shall not be awarded in excess of $125 per hours unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
42 U.S.C. § 2412 (d)(2)(A); see also Meyer v. Sullivan, 958 F.2d 1029, 1034 (11th Cir. 1992) (“Congress undoubtedly expected that the courts would use the cost-of-living escalator to insulate EAJA fee awards from inflation”). Here, Plaintiff sought an hourly rate of $243.83 for work performed in this case. The parties subsequently negotiated an hourly rate of $234.95 for work performed in 2022 and $243.57 for work performed in 2023. Courts have approved the same or similar EAJA hourly rates. See, e.g., Williams v. Kijakazi, No. 22-CV-60964, 2023 WL 5507723, at *1 (S.D. Fla. Aug. 24, 2023), report and recommendation adopted, No. 22-CV-60964-RS, 2023 WL 5507724 (S.D. Fla. Aug. 25, 2023) (awarding hourly rate of $234.95 for work performed in
2022 and 2023); Allen v. Kijakazi, No. 1:23-CV-20209-KMM, 2023 WL 4933147, at *2 (S.D. Fla. July 13, 2023), report and recommendation adopted, No. 1:23-CV-20209-KMM, 2023 WL 4930412 (S.D. Fla. Aug. 2, 2023) (finding requested rate of $234.95 reasonable for work
performed in 2023); Coyle v. Kijakazi, No. 8:22-CV-2940-CPT, 2023 WL 5486654, at *2 (M.D. Fla. Aug. 24, 2023) (awarding hourly rates of $234.95 for 2022 and $242.50 for 2023). Thus, the Undersigned finds the parties’ negotiated hourly rates to be reasonable. Plaintiff asserts that his attorney expended 54 hours on this case. The parties
subsequently agreed to a reduced number of hours (41.1 hours in 2022 and 6.9 hours in 2023), for a total of 48 hours. The Undersigned has reviewed the hours submitted in Plaintiff’s motion and finds the agreed-upon 48 hours to be reasonable.
C. Costs Plaintiff also seeks to recover $402.00 for the filing fee. The docket reflects that Plaintiff paid this filing fee. [ECF No. 1 (“Filing fees $ 402.00 receipt number AFLSDC-
15694195, filed by Simon Urena”)]. Plaintiff should be permitted to recover this cost. See Lee v. Comm’r of Soc. Sec., No. 21-CIV-80677, 2023 WL 399804, at *3 (S.D. Fla. Jan. 10, 2023), report and recommendation adopted, No. 21-80677-CV, 2023 WL 399849 (S.D. Fla. Jan. 25,
2023) (awarding $402.00 filing fee because “the EAJA permits an award of costs” and the parties agreed to the recovery of this cost); Foerster v. Kijakazi, No. 8:22-CV-1624-CPT, 2023 WL 2527010, at *3 (M.D. Fla. Mar. 15, 2023) (“find[ing] that the [p]laintiff [was] entitled to recover from the judgment fund the $402 filing fee he was charged to commence this
matter” (citing 31 U.S.C. § 1304)). Moreover, the Commissioner does not oppose this request. Accordingly, the Court should award Plaintiff the full $402.00 for this cost. III. CONCLUSION
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 22-21723-CIV-MORENO/GOODMAN
SIMON URENA,
Plaintiff, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant. _______________________________________/
REPORT AND RECOMMENDATIONS ON PLAINTIFF’S NEGOTIATED FEES MOTION
In this social security benefits action, Simon Urena (“Plaintiff”) filed a Motion for Attorney’s Fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. [ECF No. 27]. After Plaintiff filed his motion, the parties negotiated a fee amount. See Defendant’s Response to Plaintiff’s Motion for Attorney’s Fees Pursuant to the EAJA (D.E. 27) [ECF No. 30, p. 1 (“After a negotiation with opposing counsel, Defendant submits that the parties have reached an agreement as to a reasonable fee in this matter.”)]. According to the Clerk’s directive in these types of administrative appeals, all pretrial, non-dispositive matters have been referred to the Undersigned. [ECF No. 2]. Under the EAJA, the Court has discretion to require a defendant to pay the plaintiff's attorney’s fees when the plaintiff is the prevailing party. For the reasons
discussed below, the Undersigned respectfully recommends that the District Court grant in part Plaintiff’s motion and award Plaintiff the agreed upon amount of $11,337.08 in attorney’s fees and $402.00 in costs.
I. BACKGROUND Plaintiff initiated this action for judicial review of a final decision of the Commissioner of Social Security on June 6, 2022. [ECF No. 1]. Plaintiff and Defendant
filed cross-motions for summary judgment. [ECF Nos. 19; 23]. The Undersigned issued a Report and Recommendations on the parties’ summary judgment motions [ECF No. 25], recommending that Plaintiff’s summary judgment motion be granted and that the matter be remanded pursuant to 42 U.S.C. § 405(g), for further consideration. Senior United
States District Judge Federico A. Moreno adopted the Report and Recommendations [ECF No. 26] and remanded the case back to the Commissioner. Plaintiff then filed the instant fees motion. [ECF No. 27].
II. DISCUSSION A. Entitlement to Attorney’s Fees A prevailing party is not ordinarily entitled to recover attorney’s fees from his or her opponent. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
However, the EAJA explicitly provides that “a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs.” 42 U.S.C. § 2412(d)(1)(A) (emphasis added).
The EAJA empowers the Court to grant “reasonable fees and expenses of attorneys.” McCullough v. Astrue, No. 08-61954-CIV, 2009 WL 2461798, at *1 (S.D. Fla. Aug. 10, 2009) (quoting 28 U.S.C. § 2412(b)). The Court may award a prevailing plaintiff
attorney’s fees and expenses unless the Commissioner can show that her position “was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
Here, because Plaintiff obtained a judgment in his favor, he is the prevailing party for purposes of the EAJA. See Escalona v. Kijakazi, No. 1:21-CV-20652-KMM, 2022 WL 18356253, at *1 (S.D. Fla. Dec. 30, 2022), report and recommendation adopted, No. 1:21-CV- 20652-KMM, 2023 WL 199373 (S.D. Fla. Jan. 17, 2023) (“[The] [p]laintiff is the prevailing
party in this litigation, as the Court remanded this case to the Commissioner of Social Security for further proceedings after granting summary judgment in favor of [the] [p]laintiff.”). Further, Defendant does not dispute Plaintiff’s entitlement to attorney’s
fees. Thus, the Undersigned finds that Plaintiff is entitled to receive attorney’s fees under the EAJA. B. Amount of Attorney’s Fees The EAJA provides that:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) attorney fees shall not be awarded in excess of $125 per hours unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
42 U.S.C. § 2412 (d)(2)(A); see also Meyer v. Sullivan, 958 F.2d 1029, 1034 (11th Cir. 1992) (“Congress undoubtedly expected that the courts would use the cost-of-living escalator to insulate EAJA fee awards from inflation”). Here, Plaintiff sought an hourly rate of $243.83 for work performed in this case. The parties subsequently negotiated an hourly rate of $234.95 for work performed in 2022 and $243.57 for work performed in 2023. Courts have approved the same or similar EAJA hourly rates. See, e.g., Williams v. Kijakazi, No. 22-CV-60964, 2023 WL 5507723, at *1 (S.D. Fla. Aug. 24, 2023), report and recommendation adopted, No. 22-CV-60964-RS, 2023 WL 5507724 (S.D. Fla. Aug. 25, 2023) (awarding hourly rate of $234.95 for work performed in
2022 and 2023); Allen v. Kijakazi, No. 1:23-CV-20209-KMM, 2023 WL 4933147, at *2 (S.D. Fla. July 13, 2023), report and recommendation adopted, No. 1:23-CV-20209-KMM, 2023 WL 4930412 (S.D. Fla. Aug. 2, 2023) (finding requested rate of $234.95 reasonable for work
performed in 2023); Coyle v. Kijakazi, No. 8:22-CV-2940-CPT, 2023 WL 5486654, at *2 (M.D. Fla. Aug. 24, 2023) (awarding hourly rates of $234.95 for 2022 and $242.50 for 2023). Thus, the Undersigned finds the parties’ negotiated hourly rates to be reasonable. Plaintiff asserts that his attorney expended 54 hours on this case. The parties
subsequently agreed to a reduced number of hours (41.1 hours in 2022 and 6.9 hours in 2023), for a total of 48 hours. The Undersigned has reviewed the hours submitted in Plaintiff’s motion and finds the agreed-upon 48 hours to be reasonable.
C. Costs Plaintiff also seeks to recover $402.00 for the filing fee. The docket reflects that Plaintiff paid this filing fee. [ECF No. 1 (“Filing fees $ 402.00 receipt number AFLSDC-
15694195, filed by Simon Urena”)]. Plaintiff should be permitted to recover this cost. See Lee v. Comm’r of Soc. Sec., No. 21-CIV-80677, 2023 WL 399804, at *3 (S.D. Fla. Jan. 10, 2023), report and recommendation adopted, No. 21-80677-CV, 2023 WL 399849 (S.D. Fla. Jan. 25,
2023) (awarding $402.00 filing fee because “the EAJA permits an award of costs” and the parties agreed to the recovery of this cost); Foerster v. Kijakazi, No. 8:22-CV-1624-CPT, 2023 WL 2527010, at *3 (M.D. Fla. Mar. 15, 2023) (“find[ing] that the [p]laintiff [was] entitled to recover from the judgment fund the $402 filing fee he was charged to commence this
matter” (citing 31 U.S.C. § 1304)). Moreover, the Commissioner does not oppose this request. Accordingly, the Court should award Plaintiff the full $402.00 for this cost. III. CONCLUSION
The Undersigned respectfully recommends that the District Court grant in part Plaintiff’s motion and award him the agreed-upon $11,337.08 in attorney’s fees and $402.00 in costs, contingent upon a determination by Defendant that Plaintiff owes no qualifying, preexisting debt(s) to the Government, for which sum let execution issue. IV. OBJECTIONS The parties will have two (2) days! from the date of being served with a copy of this Report and Recommendations within which to file written objections, if any, with the District Judge. Each party may file a response to the other party’s objection within two (2) days of the objection. Failure to timely file objections shall bar the parties from a de
novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016). RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, October 16, 2023.
Jonathan Goodman UNITED STATES MAGISTRATE JUDGE
Copies furnished to: The Honorable Federico A. Moreno All Counsel of Record
1 The Undersigned is shortening the objections period because the parties have reached an agreement on Plaintiff's motion.