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Roberts v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

May 26, 2017

CHRISTINA LYNN ROBERTS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

         This matter is before the Court on plaintiff Christina Lynn Roberts' motion for attorney fees (DE 25). For the following reasons, Roberts' motion will be GRANTED in part and DENIED in part, I. Background

         Roberts filed suit against the Commissioner of Social Security in May 2012 after her claim for disability benefits was denied. (DE 1). During the early stages of this litigation, the Commissioner moved for a remand pursuant to sentence six of 42 U.S.C. § 405(g).[1] (DE 10). The Court granted the Commissioner's motion. (DE 11).

         In October 2016, the Court, upon motion by the Commissioner, reopened and redocketed the case, permitted the Commissioner to file an answer and the transcript, and set a briefing schedule. (DE 16). Subsequently, Roberts moved for a remand pursuant to sentence four of 42 U.S.C. § 405(g).[2] (DE 18). However, Roberts withdrew her motion to remand (DE 21) and instead consented to the Commissioner's motion for a sentence four remand (DE 22). The Court granted the consent motion. (DE 23; DE 24).

         Following the sentence four remand, Roberts filed a motion for attorney fees under the Equal Access to Justice Act. See 28 U.S.C. § 2412. Here, Roberts' attorney, Wolodymyr Cybriwsky, requests attorney fees at a rate of $150 an hour for 72.65 hours of work.

         II. Discussion

         "The EAJA provides that a court shall award fees and other expenses to a prevailing party, other than the United States, in any civil action brought by or against the United States, unless the court finds that the position of the United States was substantially justified or that special circumstances would make an award unjust." Marshall u. Comm'r of Soc. Sec, 444 F.3d 837, 840 (6th Cir. 2006) (citing 28 U.S.C. § 2412(d)(1)(A)).

         Thus, a request for fees must meet four requirements: (1) the claimant must be the prevailing party; (2) the government's position must not have been "substantially justified"; (3) no special circumstances existed to make an award unjust; and (4) the request must be timely. Id.; see also 28 U.S.C. § 2412(d)(1)(A)-(B).

         This case has been remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Relevant here, a sentence-four remand makes Roberts a "prevailing party" under the EAJA. See Turner v. Comm'r of Soc. Sec, 680 F.3d 721, 723 (6th Cir. 2012). Further, Roberts' request appears to be timely. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993)).

         The parties do not dispute that Roberts is entitled to attorney fees. Rather, the Commissioner disputes the rate that Cybriwsky, Roberts' counsel, argues should apply for the requested fees and the reasonableness of the hours Cybriwsky submitted.

         a. Hourly rate

         First, Cybriwsky "hopes to persuade this Court to find the $150 hourly rate to be reasonable here." (DE 25-1, Mem. at 3). In support of Roberts' fee request, Cybriwsky submitted the required itemized list of his actions in this case, totaling more than 70 hours of work.

         The amount of fees awarded "shall be based upon prevailing market rates for the kind and quality of the services furnished, 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, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A).

         Roberts, as plaintiff, bears the burden to demonstrate that a deviation from the statutory rate is appropriate. See Bryant v. Comm'r of Soc. Sec, 578 F.3d 443, 450 (6th Cir. 2009). Further, a plaintiff must "produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.ll (1984)).

         In support of Roberts' fee request, Cybriwsky submitted a 2003 affidavit of attorney Alvin D. Wax discussing Wax's rate for Social Security disability cases, a 2003 opinion by United States District Judge Joseph M. Hood granting a request for a higher rate based on a developing area of the law, and an incomplete 2003 magistrate judge recommendation from the Western District of Kentucky regarding attorney fees under the EAJA. (DE 25-2). Cybriwsky also argues that policy supports a higher ...


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