United States District Court, M.D. Florida, Tampa Division
HONORABLE CHRISTOPHER P. TUTTE UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Plaintiff's
Petition for Attorney Fees. (Doc. 15). For the reasons
discussed below, the Plaintiff's motion is granted.
Plaintiff initiated this action in May 2019, seeking judicial
review of the Commissioner's decision denying her claim
for Social Security Disability Benefits. (Doc. 1). On August
2, 2019, the Commissioner moved for entry of judgment in the
Plaintiff's favor and requested that the case be remanded
under sentence four of 42 U.S.C. § 405(g). (Doc. 11).
The Court granted that motion on August 9, 2019, (Doc. 13),
and the Clerk of Court entered Judgment for the Plaintiff
that same day (Doc. 14).
instant motion, filed on October 31, 2019, and unopposed by
the Commissioner, followed. (Doc. 15).
Equal Access to Justice Act (EAJA or the Act) authorizes a
court to award attorney's fees and costs to any party
prevailing in litigation against the United States (including
proceedings for judicial review of agency action), unless the
court determines that the government's position was
substantially justified or that special circumstances exist
that make such an award unjust. See 28 U.S.C. §
2412(d)(1)(A). To warrant an award of attorney's fees and
costs under the Act, three conditions must be met: (1) the
party must file an application for fees within thirty days of
the final judgment; (2) the party must qualify as the
prevailing party; and (3) the government's position must
not have been “substantially justified” and no
other special circumstances must exist to make an award
unjust. Patton v. Berryhill, 2017 WL 6520474, at *1
(M.D. Fla. Dec. 18, 2017) (citing Myers v. Sullivan,
916 F.2d 659, 666 (11th Cir. 1990)); 28 U.S.C. §
conditions have been satisfied here, as the Commissioner
effectively acknowledges by his lack of opposition. Thus, an
award of fees and costs under the Act is proper.
determine the amount of fees to be awarded under the Act, the
Court is guided by:
[the] prevailing market rates for the kind and quality of the
services furnished, except that . . . attorney fees shall not
be awarded in excess of $125 per hour 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
28 U.S.C. § 2412(d)(2)(A).
of the appropriate hourly rate involves a two-step process.
First, the court must assess the market rate for similar
services provided by attorneys of comparable skill,
experience, and reputation. Meyer v. Sullivan, 958
F.2d 1029, 1033 (11th Cir. 1992). Second, if the prevailing
market rate exceeds $125 per hour, the court must decide
whether to adjust the hourly rate for inflation or some
special factor. Id. at 1033-34.
market rate during the relevant time period for the type of
work at issue here is not subject to precise calculation. In
the Court's experience, counsel submitting EAJA fee
applications for work performed during and after 2017
typically have sought hourly rates ranging from $175 to more
than $195. As a result, the hourly rate charged by competent
attorneys in this market has, for some time, exceeded the
statutory cap of $125. Accordingly, the Court finds it
appropriate to deviate upward from the EAJA's base rate
to account for increases in the cost of living.
in this district and elsewhere routinely calculate cost of
living adjustments under the Act by using the Bureau of Labor
Statistics' Consumer Price Index (CPI). See, e.g.,
Wilborn v. Comm'r of Soc. Sec., 2013 WL 1760259, *1
(M.D. Fla. Apr. 24, 2013); Rodgers v. Astrue, 657
F.Supp.2d 1275, 1277 (M.D. Fla. July 22, 2009); Morrison
v. Astrue, 2010 WL 547775, *2 (S.D. Fla. Feb. 12, 2010);
see alsoSprinkle v. Colvin, 777 F.3d 421,
428 (7th Cir. 2015) (collecting cases in various circuits
using the CPI to determine hourly rate adjustments). The
Court finds it reasonable here to use the CPI ...