UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-21289-CIV-COOKE/GOODMAN 

ALFRED POLLACK,

Plaintiff,

v.

KILOLO KIJAKAZI,

Commissioner of Social Security1,

Defendant.

_____________________________/

REPORT AND RECOMMENDATIONS ON PLANTIFF’S

UNCONTESTED PETITION FOR REASONABLE ATTORNEY’S FEES

PURSUANT TO 42 U.S.C. § 406(b)

Plaintiff filed an Unopposed Motion for Attorney’s Fees under 42 U.S.C. § 406(b). 

[ECF No. 24]. Defendant did not file a response in opposition to the motion and the time 

to do so has since passed. United States District Court Judge Marcia G. Cooke referred 

the motion to the Undersigned. [ECF No. 2].

Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (a), the Court has 

discretion to require the defendant to pay the attorney’s fees when the plaintiff is the 

1 Plaintiff’s initial suit was brought against Andrew Saul, the Acting Commissioner 

at the time of filing. Kilolo Kijakazi became the Acting Commissioner of Social Security 

on July 9, 2021. Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi should 

be substituted for Andrew Saul as the suit’s Defendant.

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prevailing party. For the reasons discussed below, the Undersigned respectfully 

recommends that the District Court grant Plaintiff’s motion and award Plaintiff $5,137.07 

in attorney’s fees, contingent upon a determination by Defendant that Plaintiff owes no 

qualifying, preexisting debt(s) to the Government, for which sum let execution issue.

I. BACKGROUND

Plaintiff initiated this action for judicial review of a final decision of the 

Commissioner of Social Security on March 25, 2020. [ECF No. 1]. Plaintiff and Defendant 

filed cross-motions for summary judgment. [ECF Nos. 17; 18]. On March 2, 2021, 

Defendant filed an unopposed motion to withdraw the Commissioner’s summary 

judgment motion [ECF No. 20] and an unopposed motion for entry of judgment under 

sentence four of 42 U.S.C. § 405(g), requesting that the Court enter a judgment with 

remand to the Commissioner [ECF No. 21]. 

The Undersigned issued a Report and Recommendations recommending that the 

District Court grant the withdrawal of the merits brief and enter a judgment with remand 

of the case pursuant to sentence four of 42 U.S.C. § 405(g). [ECF No. 22]. Judge Cooke 

entered an Order adopting the Report and Recommendations and the case was 

remanded. [ECF No. 23]. Plaintiff then filed the instant unopposed petition for attorney’s 

fees under the EAJA. [ECF No. 24]. 

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II. DISCUSSION

A. Entitlement to Attorney’s Fees

A prevailing party is not ordinarily entitled to recover attorney’s fees from his or 

her opponent. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). 

However, the EAJA explicitly provides that “a court shall award to a prevailing party other 

than the United States fees and other expenses, in addition to any costs.” 42 U.S.C. § 

2412(d)(1)(A) (emphasis added). 

The EAJA empowers the Court to grant “reasonable fees and expenses of 

attorneys.” McCullough v. Astrue, No. 08-61954-CIV, 2009 WL 2461798, at *1 (S.D. Fla. 

Aug. 10, 2009) (quoting 28 U.S.C. § 2412(b)). The Court may award a prevailing plaintiff 

attorney’s fees and expenses unless the Commissioner can show that her position “was 

substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 

2412(d)(1)(A).

The Supreme Court has held that a plaintiff who obtains a sentence four remand 

is a prevailing party for purposes of a fee award. See Shalala v. Schaefer, 509 U.S. 292, 301 

(1993) (determining that remand under sentence four of 42 U.S.C. § 405(g) “terminates 

the litigation with a victory for the plaintiff”); see also Boronat v. Sullivan, 788 F. Supp. 557, 

559-60 (S.D. Fla. 1992) (finding that remand under sentence four is a final judgment for 

purposes of filing a fee award under the EAJA).

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Here, because Plaintiff obtained a sentence four remand, Plaintiff is the prevailing 

party for purposes of the EAJA. Further, Defendant does not dispute Plaintiff’s request 

for attorney’s fees. Thus, the Undersigned finds that Plaintiff is entitled to receive 

attorney’s fees under the EAJA.

B. Amount of Attorney’s Fees

The EAJA provides: 

The amount of fees awarded under this subsection shall be based 

upon prevailing market rates for the kind and quality of the services 

furnished, except that . . . (ii) attorney fees shall not be awarded in 

excess of $125 per hours unless the court determines that an increase 

in the cost of living or a special factor, such as the limited 

availability of qualified attorneys for the proceedings involved, 

justifies a higher fee.

42 U.S.C. § 2412 (d)(2)(A); see also Meyer v. Sullivan, 958 F.2d 1029, 1034 (11th Cir. 1992) 

(“Congress undoubtedly expected that the courts would use the cost-of-living escalator 

to insulate EAJA fee awards from inflation”).

Here, Plaintiff seeks an hourly rate of $207.28 for work performed in 2020 and 

$212.05 for work performed in 2021. Plaintiff seeks $75 per hour for paralegal work 

performed in 2020 and 2021. Courts have approved an EAJA hourly rate of $207.28 for 

work performed in 2020 and an EAJA hourly rate of $212.05 for work performed in 2021. 

See Bragg v. Commissioner, No. 8:20-CV-671-SPF, 2021 WL 2226587, at *1 (M.D. Fla. June 2, 

2021) (approving EAJA hourly rate at $207.28 for work performed in 2020 and hourly rate 

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at $212.05 for work performed in 2021).

2 Thus, the Undersigned finds the hourly rate 

reasonable.

Plaintiff asserts that his attorneys expended 23.6 hours on his case, plus an 

additional 2.1 additional hours of paralegal time. [ECF Nos. 24, pp. 4-6; 24-1]. The 

Undersigned has reviewed the hours submitted in Plaintiff’s petition and finds the time 

expended by Plaintiff’s attorneys and paralegal to be reasonable.

III. CONCLUSION

The Undersigned respectfully recommends that the District Court grant

Plaintiff’s motion for attorney’s fees and award Plaintiff $5,137.07 in attorney’s fees, 

contingent upon a determination by Defendant that Plaintiff owes no qualifying, 

preexisting debt(s) to the Government, for which sum let execution issue.

IV. OBJECTIONS

The parties will have two (2) days from the date of being served with a copy of 

this Report and Recommendations within which to file written objections, if any, with the 

District Judge. Each party may file a response to the other party’s objection within two 

2 The adjusted rates were determined by first calculating the cost-of-living 

percentage increase by subtracting the March 1996 rate from the Annual Consumer Price 

Index (“CPI”) for 2020 and 2021 (when the work was performed) and dividing that 

number by the March 1996 rate. See Ingels v. Comm'r of Soc. Sec., No. 6:16-cv-1581-Orl37KRS, 2018 WL 1832214, at *1, n.3 (M.D. Fla. Apr. 9, 2018). The cost-of-living percentage 

increase was then applied to the $125 statutory rate to calculate the adjusted hourly rate 

permitted by the EAJA. Id.; see also U.S. Bureau of Labor Statistics, CPI-All Urban 

Consumers (Current Series), http://data.bls.gov/cgi-bin/surveymost?bls. 

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(2) days of the objection.

3 Failure to timely file objections shall bar the parties from a de 

novo determination by the District Judge of an issue covered in the Report and shall bar 

the parties from attacking on appeal unobjected-to factual and legal conclusions 

contained in this Report except upon grounds of plain error if necessary in the interest of 

justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 

885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, November 

1, 2021.

Copies furnished to:

The Honorable Marcia G. Cooke

All Counsel of Record

3 The Undersigned is shortening the objections period because Defendant did not 

file a response in opposition to Plaintiff’s motion, thereby indicating no opposition to the 

motion.

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