Jasper v. Commissioner of Social Security

Middle District of Florida, flmd-8:2016-cv-00727

REPORT AND RECOMMENDATIONS re {{23}} Unopposed MOTION for Attorney Fees filed by Percy Jasper. Signed by Magistrate Judge Anthony E. Porcelli on 4/27/2017. (JMF)

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PageID 594 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION PERCY JASPER, Plaintiff, v. Case No. 8:16-cv-727-T-23AEP NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 Defendant. / REPORT AND RECOMMENDATION This cause comes before the Court upon Plaintiff's Unopposed Motion for Attorney's Fees Pursuant to Equal Access to Justice Act (Doc. 23). By the motion, Plaintiff seeks an award of attorney's fees in the amount of $1,840.32 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. On February 16, 2017, upon consideration of the undersigned's Report and Recommendation (Doc. 19), this Court entered an Order adopting the Report and Recommendation and reversing and remanding the case under sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative proceedings (Doc. 20). Thereafter, the Clerk entered judgment and subsequently an amended judgment in favor of Plaintiff (Docs. 21 & 22). As the prevailing party, Plaintiff now requests an award of attorney's fees. See 28 U.S.C. § 2412(d)(1)(A); cf. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who wins a sentence-four remand order under 42 U.S.C. § 405(g) is a prevailing party). 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to 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). PageID 595 Namely, Plaintiff requests an award of attorney's fees for 9.6 hours expended at an hourly rate of $191.70, for a total award of $1,840.32 (Doc. 23-1). Based on the undersigned's own knowledge and experience, and for the reasons set forth in Plaintiff's motion, the undersigned concludes that both the hours expended and the hourly rate requested are fair and reasonable. Furthermore, as Plaintiff contends, the position of the United States was not substantially justified and no special circumstances exist which would make an award of attorney's fees unjust in this instance. See 28 U.S.C. § 2412(d)(1)(A). Indeed, the Commissioner does not oppose the requested relief (Doc. 23, at 2). Accordingly, it is hereby RECOMMENDED: 1. Plaintiff's Unopposed Motion for Attorney's Fees Pursuant to Equal Access to Justice Act (Doc. 23) be GRANTED. 2. Plaintiff be awarded attorney's fees in the amount of $1,840.32. IT IS SO REPORTED in Tampa, Florida, on this 27th day of April, 2017. 2 PageID 596 NOTICE TO PARTIES A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. cc: Hon. Steven D. Merryday Counsel of Record 3