Fitzgerald v. Kijakazi

• Decision Date: 28 July 2022
• Docket Number: Civ. 7:21-cv-00148
• Parties: JAMES E. FITZGERALD, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

JAMES E. FITZGERALD, Plaintiff,
v.
KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

Civ. No. 7:21-cv-00148

United States District Court, S.D. Texas, Mcallen Division

July 28, 2022

REPORT & RECOMMENDATION

JUAN F. ALANIS, MAGISTRATE JUDGE

Upon consideration of Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act (Dkt. No. 24) and Statement of Attorney Time Expended (Dkt No. 24-1), the undersigned recommends that Plaintiff is entitled to recover attorney's fees and costs. Defendant does not oppose the motion. (Dkt. No. 26.) As will be set out in this Report and Recommendation, the Court finds that $8,160 represents a reasonable fee award that is commensurate with fee awards in similar cases. Likewise, Plaintiffs costs are reasonable. Accordingly, the undersigned hereby recommends that Plaintiffs motion (Dkt. No. 24) be GRANTED and Plaintiff is entitled to an award from Defendant of attorney's fees in the amount of $8,160, payable to Plaintiff in care of his attorney, and $402 in reimbursable costs from the Judgment Fund.

I. BACKGROUND

On April 15, 2021, Plaintiff, James Fitzgerald, filed a Complaint pursuant to 42 U.S.C. § 405(g). (Dkt. Nos. 1 at 1, 1-1 at 1.) This case was referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b). Subsequently, on October 22, 2021, Plaintiff filed Plaintiffs Motion for Summary Judgment (Dkt. No. 14) and related

1

supporting memorandum (Dkt. No. 15); on March 4, 2022, Defendant filed Defendant's Unopposed Motion to Reverse and Remand (Dkt. No. 20). On March 29, 2022, the undersigned filed a report and recommendation recommending the Commissioner's disability determination be reversed and the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g) back to the Commissioner. (Dkt. No. 21.) On April 5,2022, the Court adopted the report and recommendation and set out a judgment therein. (Dkt. Nos. 22, 23.)

Now, Plaintiff seeks, under the Equal Access to Justice Act (“EAJA”), to recover attorney's fees in the amount of $8,160 for 40.0 hours billed and $402 in costs. (Dkt. No. 24 at 2-3.) Defendant does not oppose Plaintiff's request for fees yet clarifies that costs for filing fees are not paid as EAJA fees. (Dkt. No. 26 at 1.)

Plaintiff's counsel (“Counsel”) expended 46.2 hours of attorney work, yet billed for 40.0 hours, which Counsel claims is reasonable under the circumstances and demonstrates an “exercise of considerable billing discretion.” (Dkt. No. 24 at 2, ¶¶ 5-6.) Time spent on the matter included reviewing the transcript, drafting the opening brief, conferring with the SSA, and other research matters. (Dkt. No. 24-1 at 2-4.) The hourly rate requested is $204 per hour. Id. at 4.

Plaintiff's motion for fees and costs is now ripe for review.

II. APPLICABLE LAW

Under the EAJA, a litigant is entitled to attorney's fees and costs if: “(1) the claimant is a ‘prevailing party,' (2) the position of the United States was not ‘substantially justified,' and (3) there are no special circumstances that make an award unjust.” Grady v. Comm'r of Soc. Sec. Admin., No. 3:19-CV-3001-B-BK, 2021 WL 3852187, at *1 (N.D. Tex. June 22, 2021), report and recommendation adopted, No. 3:19-CV-03001-B-BK, 2021 WL 3849722 (N.D. Tex. Aug. 27,2021) (citing Sims v. Apfel, 238 F.3d 597,599-600 (5th Cir. 2001); 28 U.S.C. § 2412(d)(1)(A)).

2

Further, the attorney's fees awarded must be reasonable. See 28 U.S.C. § 2412(b). Any awarded fees must be made payable to Plaintiff, not Counsel, though the award may be placed in the care of Counsel. See Astrue v. Ratliff, 560...