Filed: Mar. 19, 2014
Latest Update: Mar. 19, 2014
Summary: REPORT AND RECOMMENDATION KARLA R. SPAULDING, Magistrate Judge. TO THE UNITED STATES DISTRICT COURT: This cause came on for consideration without oral argument on the following motion filed herein: MOTION: PLAINTIFF'S UNCONTESTED PETITION FOR ATTORNEY'S FEES (Doc. No. 31) FILED: March 10, 2014 Plaintiff, Thomas L. Bunn, Jr., seeks an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412. A final judgment reversing the decision below was entered
Summary: REPORT AND RECOMMENDATION KARLA R. SPAULDING, Magistrate Judge. TO THE UNITED STATES DISTRICT COURT: This cause came on for consideration without oral argument on the following motion filed herein: MOTION: PLAINTIFF'S UNCONTESTED PETITION FOR ATTORNEY'S FEES (Doc. No. 31) FILED: March 10, 2014 Plaintiff, Thomas L. Bunn, Jr., seeks an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412. A final judgment reversing the decision below was entered o..
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REPORT AND RECOMMENDATION
KARLA R. SPAULDING, Magistrate Judge.
TO THE UNITED STATES DISTRICT COURT:
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: PLAINTIFF'S UNCONTESTED PETITION FOR
ATTORNEY'S FEES (Doc. No. 31)
FILED: March 10, 2014
Plaintiff, Thomas L. Bunn, Jr., seeks an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. A final judgment reversing the decision below was entered on February 20, 2014. Doc. No. 30. Counsel for the Plaintiff represents that the relief requested is not opposed. Doc. No. 31 at 3. Thus, the motion is now ripe for consideration.
Richard A. Culbertson, Esq., Plaintiff's counsel of record, seeks an award of fees for 2.0 hours of work in 2012, 19.4 hours of work in 2013, and 1.2 hours of work in 2014, for a total of 22.6 hours by Attorney Culbertson. Id. at 2, 12-13. Attorney Culbertson also seeks recovery for 2.5 hours of work by Attorney Sarah Fay in 2013. Id. at 2, 14. The total award sought is $4,687.70. Id. at 1-3.
The EAJA sets a ceiling of $125.001 on the hourly rate for which attorneys may be compensated under the statute, which courts may adjust upward based on changes in the Consumer Price Index ("CPI"). 28 U.S.C. § 2412(d)(2)(A). Attorneys Culbertson and Fay request $184.00 per hour for the work performed in 2012 and $187.00 per hour for the work performed in 2013 and 2014. Doc. No. 31 at 2, 8. Attorney Culbertson provides an analysis for the cost-of-living increase using the CPI for 2012 and 2013, but he does not analyze the cost-of-living adjustment for 2014. Id. at 8-10. Independent calculations show that the average adjusted hourly rate through February 2014 for the EAJA is $188.14.2 Accordingly, based on the cost-of-living adjustment, the requested rates of $184.00 per hour for 2012 and $187.00 per hour for 2013 and 2014 do not exceed the EAJA cap of $125.00 per hour adjusted for inflation.
The EAJA states that the amount of attorney's fees and costs shall be based on prevailing market rates, "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 . . . justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). At least one Judge of this Court has expressed concern that the maximum rates authorized by applying a cost-of-living adjustment exceed the reasonable hourly rate for work of this type. See Coffman v. Astrue, No. 8:07-cv-1416-T-TGW, 2008 WL 5137956 (M.D. Fla. Dec. 5, 2008). Nevertheless, because the Commissioner does not object to the hourly rates sought and they are within the rates permitted by the EAJA, I recommend that the Court find that the rates are reasonable without objection.3 See Woodworth v. Comm'r of Soc. Sec., Case No. 6:12-cv-826-Orl-KRS at Doc. No. 24 (M.D. Fla. Nov. 27, 2013) (awarding $187.01 per hour for work performed in 2013 using average monthly multipliers through October 2013 in the absence of objection); Schneider v. Comm'r of Soc. Sec., Case No. 6:12-cv-993-Orl-37KRS at Doc. No. 23 (M.D. Fla. Aug. 23, 2013) (recommending $184.00 per hour for work performed in 2012).
I also recommend that the Court find that the total hours worked are reasonable in the absence of objection.
Plaintiff filed a retainer agreement that includes an assignment of any fees awarded under the EAJA to Attorney Culbertson. Doc. No. 31-1. In the retainer agreement, Plaintiff assigned his right to any attorney fees awarded under the EAJA to Attorney Culbertson. Id. In the motion, Attorney Culbertson represents that "Plaintiff requests that any payment shall be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not owe a federal debt. If the United States Department of the Treasury determines that Plaintiff does not owe a federal debt, the government will accept Plaintiff's assignment of EAJA fees and pay fees directly to Plaintiff's counsel." Doc. No. 31 at 2.
Accordingly, I RESPECTFULLY RECOMMEND that the Court GRANT in part Plaintiff's Uncontested Petition for Attorney's Fees (Doc. No. 31) and ORDER the Commissioner to pay $4,687.70 in attorney's fees.4 The Commissioner may, in her discretion, be permitted to pay all or part of the fees to Plaintiff Bunn's counsel should she determine it appropriate to do so.
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
