United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION 
NICHOLAS P. MIZELL, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the Supplemental Petition
for EAJA Fees Pursuant to 28 U.S, .C., § 2412(d), filed
on June 19, 2019. Plaintiff requests an award of supplemental
attorneys fees in the amount of $1, 139.75. (Doc. 43 at 1).
The Commissioner filed an Opposition (Doc. 44) on July 2,
2019. For the following reasons, the Court grants the
Supplemental Petition in part and denies it in part.
history of the case is instructive. On August 3, 2018, the
Court reversed and remanded this action to the Commissioner.
(Doc. 30). On August 6, 2018, the Clerk entered
Judgment and Plaintiff filed a Petition for EAJA Fees
Pursuant to 28 U.S.C. § 2412(d). (Doc. 31; Doc. 32). In
the Petition, Plaintiff sought $7, 782.75 in attorney's
fees (36.6 hours in 2017 at a rate of $196.25 per hour and 3
hours in 2018 at $200.00 per hour), $400.00 in costs, and
$18.30 in expenses. (Doc. 41 at 2). The Court reduced the
amount of fees after considering the Commissioner's
objections and awarded $6, 997.00 in attorney's fees,
$400.00 in costs, and $18.30 in expenses. (Id. at
Plaintiff seeks additional fees of $1, 139.75 in
attorney's fees for the following: (1) fees incurred for
the preparation of the Reply (Doc. 38) to the Response (Doc.
35) to the Petition for Attorney's Fees (Doc. 32); and
(2) fees incurred in preparing this Supplemental Petition.
(Doc. 43 at 17-18). The Commissioner opposes the relief
requested, arguing: (1) Plaintiff's “reply was
unsuccessful in persuading this Court that the number of
hours requested was reasonable”; and (2)
Plaintiff's requested hours are excessive. (Doc. 44 at
to Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d), fees are determined under the
“lodestar” method by determining the number of
hours reasonably expended on the matter multiplied by a
reasonable hourly rate. Jean v. Nelson, 863 F.2d
759, 773 (11th Cir. 1988). The resulting fee carries a strong
presumption that it is a reasonable fee. City of
Burlington v. Daque, 505 U.S. 557, 562 (1992).
Commissioner first argues that Plaintiff was not entirely
successful in persuading the Court that all of the hours
expended were reasonable and, thus, should not be entitled to
EAJA fees for the time expended on the Reply. (Doc 40 at
5-6). In the Court's Report and Recommendation, the Court
did consider Plaintiff's Reply in rendering its decision
and found the Commissioner's position was not
substantially justified. (Doc. 40 at 5-6). In addition, the
Court did not adopt all of the Commissioner's requested
fee reductions. (Doc. 41 at 2-3). Thus, the Court finds
that at least some of the time Plaintiff expended is
reasonable and subject to recovery under EAJA.
the Commissioner's second argument regarding the
reasonableness of the hours and hourly rate, the Court
considered the hours and hourly rate Plaintiff requested and
finds them to be excessive. EAJA fees are “based upon
prevailing market rates for the kind and quality of services
furnished, ” not to 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). Thus, determination of the appropriate hourly
rate is a two-step process. The Court first determines the
prevailing market rate; then, if the prevailing rate exceeds
$125.00, the Court determines whether to adjust the hourly
rate. Meyer v. Sullivan, 958 F.2d 1029, 1033-34
(11th Cir. 1992). The prevailing market rates must be
determined according to rates customarily charged for
similarly complex litigation and are not limited to rates
specifically for social security cases. Watford v.
Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985).
year 2018, Plaintiff seeks an hourly rate of $202.50, and for
the year 2019, Plaintiff seeks an hourly rate of $205.00. For
the year 2018, the Court previously found the hourly rate of
$200.00 to be reasonable. (Doc. 41 at 2). The Court finds no
justification to change this rate. Thus, the Court recommends
that the hourly rate for 2018 be reduced to $200.00 per hour.
For the year 2019, the Court finds that the rate of $205.00
is reasonable. (See Doc. 44 at 4 n.3).
seeks 3.3 hours for reviewing the Commissioner's Response
(Doc. 35) to the Petition, reviewing the Order (Doc. 37)
permitting the Reply, research, and preparation of the Reply.
(Doc. 43 at 12-13). The Commissioner argues that Plaintiff
should be compensated for 1 hour of time at most. (Doc. 44 at
4). The Court finds Plaintiff's requested amount of time
to be excessive. The Reply (Doc. 38) was only six (6) pages
long. After review of the Reply, the Court finds that 2.4
hours to review the Commissioner's response, research the
issues, and draft the Reply are sufficient. Thus, the Court
recommends an award of $480.00 in attorney's fees for
seeks 2.3 hours for the preparation of the Supplemental
Petition. (Doc. 43 at 18). The Commissioner argues that
Plaintiff should be compensated for .5 hours. (Doc. 44 at 4).
Much of the Supplemental Petition appears to be copied from
the prior Petition for EAJA Fees. (Compare Doc. 32,
with Doc. 43). Thus, the Court finds 2.3 hours
excessive and the Court recommends that the hours be reduced
to 1.3 hour for the preparation of the Supplemental Petition,
for an award of $266.50.
the Court recommends that Plaintiff be awarded $746.50 in
supplemental EAJA fees.
filed an Attorney Fee Contract for Social Security
Benefits/SSI Fee Agreement - Federal Court. (Doc. 43-1 at 1).
This Contract provides that Plaintiff assigns “any
court awarded EAJA attorney fees and costs, for federal court
work only, to my attorney.” (Id.). Thus, the
Court recommends that the fees to be paid directly to counsel
if the United States Department of Treasury determines that
no federal debt is owed.
it is respectfully RECOMMENDED:
(1) The Supplemental Petition for EAJA Fees Pursuant to 28
U.S.C. 2412(d) be GRANTED in ...