United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
matter is before the Court on several motions for
attorneys' fees filed on behalf of Plaintiff Ronald
Antonio Rosebud. Over the course of his Social Security
Appeal, Mr. Rosebud was represented by two separate
attorneys, both of which now request fees for their work. For
the following reasons, the Court grants the
petition for fees attributable to Mr. Richards's work but
denies the petitions for fees attributable
to Mr. Cybriwsky's work.
Rosebud filed an application for supplemental security income
(SSI) on July 5, 2011, alleging disability due to HIV,
bipolar disorder, and schizophrenia. [R. 52 at 1.]
Previously, he had been awarded benefits in 1994, but was
incarcerated sometime around 2011. Id. His
application was denied, and he was unsuccessful in his
administrative appeals process. Id. at 1- 2. Mr.
Rosebud filed his action in this Court on May 29, 2013. [R.
1.] Ultimately, on March 31, 2015, this Court found that the
Administrative Law Judge's failure to inquire into his
previous award of benefits and the res judicata
effect of that award was reversible error. [R. 52 at 6.] The
ALJ's denial of Mr. Rosebud's benefits was reversed
and the case remanded for further proceedings. [R. 54.]
Mr. Rosebud filed his complaint in 2013, he was represented
by Wolodymyr Cybriwsky. [R. 1.] However, on September 26,
2014, Mr. Cybriwsky was sanctioned by United States District
Judge Joseph M. Hood for failure to comply with the
Court's Standing Scheduling Order for Social Security
Actions in various cases. [R. 26.] As part of that Order, Mr.
Cybriwsky was ordered to file a Notice of Sanction in all
other cases in which he appeared as counsel of record.
Id. at 4. In these sanctions, Judge Hood required
him to withdraw as counsel and find a suitable replacement
within ten days, and Judge Hood further barred him from
serving as counsel of record in the Eastern District of
Kentucky for one year. [R. 27.] Moreover, Mr. Cybriwsky
failed to timely notify this Court of his sanctions as
ordered by Judge Hood. [R. 26 at 4; R. 28.] Accordingly, this
Court ordered his removal as counsel of record in this matter
and directed Mr. Cybriwsky to assist Mr. Rosebud in finding
substitute counsel. [R. 27.]
of Mr. Rosebud's incarceration, Mr. Cybriwsky initially
had some difficulty in finding substitute counsel. [R. 34.]
However, on December 20, 2014, Hon. E. Douglas Richards began
his representation of Mr. Rosebud. [R. 37.] Mr. Cybriwsky had
previously filed a Motion to Remand this matter [R. 11], but
Mr. Richards sought a new briefing schedule [R. 41] and filed
a new Motion for Summary Judgment [R. 43]. Now, Mr. Rosebud
has filed motions requesting attorney's fees and expenses
for both Mr. Cybriwsky and Mr. Richards. [R. 55; R. 56; R.
Equal Access to Justice Act (EAJA) permits a litigant to
recover attorneys' fees and expenses from the United
States if that litigant is a “prevailing party, ”
if the position of the United States was not
“substantially justified, ” and if there are no
special circumstances warranting a denial of fees and/or
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(a); Perket v. Sec'y of
Health & Human Servs., 905 F.2d 129, 132 (6th Cir.
1990). A “prevailing party” is one who succeeds
on a significant issue “which achieves some of the
benefit the parties sought in bringing suit.”
Farrar v. Hobby¸ 506 U.S. 103, 109 (1992)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). For the Government's position to be
“substantially justified, ” the position must be
“justified to a degree that could satisfy a reasonable
person, ” meaning that the position has a reasonable
basis in both fact and law. Pierce v. Underwood, 487
U.S. 552, 565 (6th Cir. 1988).
Court first turns to Mr. Rosebud's request for $3, 462.50
in attorney's fees incurred for Mr. Richards's work.
This amount is based on 27.7 hours of work at a rate of $125
per hour. [R. 56-1 at 3.] The Commissioner does not object to
this request but does object to Mr. Rosebud's desire for
the fees to be paid directly to Mr. Richards. [R. 58.] The
Commissioner did not waive the requirements of the
Anti-Assignment Act, which permits assignment of the claim
only after the claim is allowed and the amount of the claim
is determined. 31 U.S.C. § 3727. Because Mr. Rosebud
initially did not submit a signed, valid fee assignment, the
Commissioner objected to paying the fee directly to Mr.
Richards. [R. 58 at 4.] Mr. Rosebud subsequently submitted a
document purporting to assign this claim to Mr. Richards,
however, the Commissioner still has not waived the
requirements of the Anti-Assignment Act, and therefore, any
assignment of this claim is void. [R. 63 at 2.] Accordingly,
Mr. Rosebud's request for fees relating to Mr.
Richards's work is granted, but the fees are to be paid
directly to Mr. Rosebud and not Mr. Richards.