Case Name in Social Security Case - Unavailable

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-60137-CV-DIMITROULEAS/TORRES
PATRICK VICTORIN,
Plaintiff,
v.
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
/
REPORT AND RECOMMENDATION
ON PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES
This matter is before the Court on Plaintiff’s unopposed motion for an award
of $8,500.00 in attorneys’ fees plus costs pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d) (“EAJA”). 	[D.E. 23]. 	Defendant represented as per Local Rule
7.1 no opposition to the motion and indeed no written response was filed on the docket
to the pending motion. Having reviewed the record and relevant authority, and being
otherwise fully advised in the premises, the Court recommends that Plaintiff’s motion
be GRANTED for the following reasons.
First, the record in the case shows that Plaintiff is eligible for an award of
attorneys’ fees under the EAJA following the entry of a consent Judgment [D.E. 17]
under sentence four of 42 U.S.C. § 405(g). 	That Judgment remanded the case to the
Commissioner for further proceedings on Plaintiff’s application for benefits. 	No
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award of past-due benefits has yet been ordered, thus no fees are warranted under
42 U.S.C. § 406(b)(1)(A). 	But, under the EAJA, a prevailing party may recover a
separate award of fees if the position of the United States on initial judicial review
was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). See, e.g., Jackson v.
Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010); Watford v. Heckler, 765
F.2d 1562, 1564-65 (11th Cir. 1985).
Second, 	upon 	the 	filing 	of 	a 	motion 	for 	fees 	under 	section 	2412 	the
Commissioner bears the burden of proving the denial of benefits was substantially
justified. “In proving that its position was substantially justified, the government
bears the burden of demonstrating ‘that its case had a reasonable basis both in law
and fact.’” Jefferson v. Bowen, 837 F.2d 461, 462 (11th Cir. 1988).
Here, given the Commissioner’s decision to not oppose the motion no such
showing has been made. 	And the record indeed supports the conclusion that fees
are awardable under section 2412(d)(2)(D).
Third, the Court has an independent duty to award only those fees that are
reasonable and compensable under the statute. 	When a plaintiff seeks attorney’s
fees, the EAJA “establishes a two-step analysis for determining the appropriate
hourly rate to be applied in calculating attorney's fees under the Act.” Meyer v.
Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992). The first step is “to determine the
market rate for ‘similar services [provided] by lawyers of reasonably comparable
skills, 	experience, 	and 	reputation.’ 	” Id. 	(citing Norman 	v. 	Housing 	Auth. 	of
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Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). “The second step, which is needed
only if the market rate is greater than [$125] per hour, is to determine whether the
court should adjust the hourly fee upward from [$125] to take into account an
increase in the cost of living [since 1996], or a special factor.” Meyer, 958 F.2d at 1033–
34; see also 28 U.S.C. § 2412(d)(2)(A). 	The Eleventh Circuit has made clear that the
application of the cost-of-living adjustment under the EAJA is considered “next to
automatic.” Meyer, 958 F.2d at 1035 n.9. 	The hourly rate charged by competent
attorneys in this market has, for some time, surpassed the statutory cap of $125. See,
e.g., Angene v. Acting Comm'r of Soc. Sec., No. 22-CV-23718, 2024 WL 3522491, at *2
(S.D. Fla. Feb. 16, 2024).
Upon the Court’s review of the record, Plaintiff has established that a higher
fee is justified, which the Commissioner again does not oppose as far as the amount
requested in the motion. 	Plaintiff’s counsel required 33.1 hours of attorney time for
the preparation of his briefing on the initial motion and the handling of the action.
That 	amount 	was 	reasonable 	under 	the 	circumstances, 	together 	with 	7.35 	of
paralegal time charged at $100.00 per hour. 	Based on the increased cost of living
that followed from the March 1996 date when the original $125 fee cap was set, the
agreed-upon amount of $8,500 represents a billable attorney rate of $234.14 per hour,
which amount falls far below the current market rate for competent counsel in
comparable legal matters.
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Fourth, a party seeking EAJA fees must also show the reasonableness of the
number of hours expended. 	Watford, 765 F.2d at 1568. 	The Court’s review of
counsel’s 	itemization 	of 	work 	performed 	reflects 	that 	the 	work 	incurred 	was
reasonably necessary for the successful outcome of the litigation at this stage. 	The
number of hours requested, which again the Commissioner does not oppose, should
be awarded in full.
Finally, in Astrue v. Ratliff, the Supreme Court held that EAJA fee awards are
awarded to the litigant, rather than to the litigant’s attorney, and therefore EAJA fee
awards are subject to a government offset to satisfy a pre-existing debt that the
litigant owes to the United States. 560 U.S. 586, 589 (2010). The Supreme Court
noted that nothing in the statute or its holding affects the prevailing party's
contractual right to assign his or her right to receive the fee to an attorney. Id. at 596-
98. 	Plaintiff executed a valid assignment in this case.
Based on the foregoing, Plaintiff’s motion should be GRANTED as follows.
A. 	Plaintiff should be awarded $8,500.00 for fees reasonably incurred in
the action under the EAJA. 	Reasonably incurred costs in the amount
of $405.00, representing the filing fees charge to Plaintiff, should also be
awarded to be paid from the Judgment fund per 28 U.S.C. § 1304.
B. 	If the United States Department of the Treasury verifies to the Office of
the General Counsel that Plaintiff does not owe a debt, the Government
should honor Plaintiff’s assignment of EAJA fees and costs and make
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payment of Plaintiff’s total fee award of $8,500.00 and $405.00 in costs
payable directly to Plaintiff’s counsel.
C. 	To expedite matters, any objection to this Report and Recommendation
must be filed within seven (7) days. 	Failure to object precludes a party
from filing an appeal of the resolution of the pending motion.
DONE AND SUBMITTED in Chambers at Miami, Florida, this 6th day of
January, 2026.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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