United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
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
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). (DE 10). The Court granted the
Commissioner's motion. (DE 11).
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). (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).
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.
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)).
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.
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)).
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
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.
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).
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)).
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 ...