Opinion
Case No: 6:14-cv-1111-Orl-40TBS
05-12-2015
RUSSELL GENE CLIFTON, JR. , Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act (Doc. 21). On April 20, 2015, the Court entered an order granting the Commissioner's Unopposed Motion to Remand and remanding the case to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) (Doc. 19). The Clerk entered judgment the following day (Doc. 20). On May 11, Plaintiff filed this application for attorney's fees (Doc. 21). The Commissioner does not oppose the motion (Id. ¶ 11).
Plaintiff requests an award of attorney fees in the amount of $4,348.72 under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §2412(d). Under the EAJA, a party is eligible for an attorney fee award where: (1) the party is a prevailing party in a non-tort suit involving the United States; (2) the Government's position was not substantially justified; (3) the party filed a timely application for attorney's fees; (4) the party had a net worth of less than $2 million at the time the complaint was filed; and (5) there are no special circumstances which would make the award of fees unjust. Id. Plaintiff asserts that he is the prevailing party, that the Commissioner's position in the underlying action was not substantially justified, and that his net worth at the time this action was filed was less than $2 million (Doc. 21, ¶¶ 4-7). The schedule of hours attached to the motion confirms the Plaintiff's attorneys' claimed hours (Doc. 21, pp. 12-13).
Plaintiff has attached a copy of his assignment of EAJA fees to his counsel. (Doc. 21-1). In light of the assignment, Plaintiff requests that payment be made payable to Plaintiff and delivered to his attorney unless Plaintiff owes a federal debt. If the U.S. 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.
Upon due consideration, I RESPECTFULLY RECOMMEND that Plaintiff's motion be GRANTED and that he be awarded attorney's fees in the amount of $4,348.72 to be paid to Plaintiff if the Commissioner determines he does not owe a debt to the government.
Specific written objections to this report and recommendation may be filed in accordance with 28 U.S.C. § 636, and M.D. Fla. R. 6.02, within fourteen (14) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
RESPECTFULLY RECOMMENDED at Orlando, Florida on May 12, 2015.
/s/_________
THOMAS B. SMITH
United States Magistrate Judge
Copies furnished to:
Presiding United States District Judge
Counsel of Record