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Ortiz v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

January 5, 2018

JAVIER PINEIRO ORTIZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICKUNITES STATES MAGISTRATE JUDGE

         This cause comes before the Court for consideration without oral argument on the following motion:

         MOTION: UNOPPOSED MOTION FOR ATTORNEY'S FEES (Doc. 20)

FILED: December 20, 2017 THEREON it is RECOMMENDED that the motion be GRANTED in part. I. BACKGROUND.

         On November 9, 2017, judgment was entered reversing and remanding this case to the Commissioner of Social Security (the Commissioner) for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Docs. 18; 19. On December 20, 2017, Plaintiff filed a motion for attorney fees (the Motion), requesting an award of $3, 012.37 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (the EAJA). Doc. 20. Plaintiff also implicitly requested that the EAJA award be paid directly to Plaintiff's counsel if the government determines that Plaintiff does not owe a debt to the government. Id. at 2-3. The Motion is unopposed. Id. at 3.

         II. DISCUSSION.

         A party seeking an award of attorney fees pursuant to the EAJA must demonstrate that he or she is eligible for an award of EAJA fees and that the amount sought is reasonable. The undersigned finds, as discussed below, that Plaintiff is eligible to recover EAJA fees and that Plaintiff's request for EAJA fees is reasonable.

         A. Eligibility for EAJA Fees.

         A party may recover an award of attorney 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. See 28 U.S.C. § 2412(d)(1), (d)(2). Plaintiff met all five requirements in this case.

         1. Prevailing Party.

         The Court reversed the final decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanded the case for further proceedings. Docs. 17; 18; 19. The Supreme Court has made clear that a plaintiff obtaining a sentence-four remand is a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). Accordingly, the undersigned finds that Plaintiff is a prevailing party.

         2. Timely Application.

         A plaintiff must file an application for fees and other expenses within 30 days of the “final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). A final judgment is defined as a judgment that “is final and not appealable.” Id. at § 2412(d)(2)(G). The Commissioner generally has 60 days in which to appeal, thus a judgment typically becomes final after 60 days. Fed. R. App. P. 4(a)(1)(B). The plaintiff, as discussed above, then has 30 days in which to file his or her motion for EAJA fees. Therefore, a motion for EAJA fees is timely if it is filed within 90 days after the date that judgment is entered. Jackson v. Chater, 99 F.3d 1086, 1095 n.4 (11th Cir. 1996). Here, the Judgment was entered on November 9, 2017, and the Motion was filed 41 days later on December 20, 2017, before the Commissioner's time to appeal had passed. Docs. 19; 20. However, given that the Commissioner did not object to the Report and Recommendation (Doc. 17) or the Motion, it appears that the Commissioner has declined to appeal and, thus, that the Motion is timely. Should the Commissioner wish to appeal the Court's decision, the Commissioner may object to this Report.

         3. ...


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