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Rosebud v. Berryhill

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

January 14, 2019

RONALD ANTONIO ROSEBUD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE

         This 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.

         I

         Mr. 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.]

         When 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.]

         Because 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. 61.]

         II

         The 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 costs:

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).

         A

         The 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.

         B

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