Karboski v. Commissioner of Social Security
Filing
18
ORDER granting 16 Motion for Attorney Fees. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 8/16/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JEFFREY PETER KARBOSKI,
Plaintiff,
v.
CASE NO:
8:12-cv-2033-T-33EAJ
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff's
Unopposed Motion for Award of Attorney's Fees Pursuant to
Equal Access to Justice Act 28 U.S.C. § 2412 (Doc. # 16),
filed on August 15, 2013.
Plaintiff is seeking an award of
$4,536.65 in attorney's fees and $350.00 in costs.
For the
reasons that follow, the Court grants the motion.
A.
Eligibility for Award of Fees
The Equal Access to Justice Act ("EAJA"), 28 U.S.C. §
2412, requires an award of attorney's fees and costs to any
party prevailing in litigation against the United States,
including proceedings for judicial review of Social Security
Administration Agency action, unless the Court determines that
the position of the United States was substantially justified
or that special circumstances exist and make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
Under
the
EAJA,
a
party
may
recover
an
award
of
attorney's fees against the government provided the party
meets five requirements: (1) the party seeking the award is
the prevailing party; (2) the application for such fees,
including an itemized justification for the amount sought, is
timely filed; (3) the claimant had a net worth of less than $2
million at the time the complaint was filed; (4) the position
of the government was not substantially justified; and (5)
there are no special circumstances which would make an award
unjust.
1.
See 28 U.S.C. § 2412(d)(1) and (2).
Prevailing Party
The Judgment in this case reversed the final decision of
the
Commissioner
and
remanded
the
case
for
further
consideration pursuant to sentence four of the Social Security
Act, 42 U.S.C. § 405(g). (Doc. #
15).
"[A] party who wins a
sentence-four remand order is a prevailing party." Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). Thus, Plaintiff qualifies
as the prevailing party in this action.
2.
Timely Application
The
EAJA
requires
a
prevailing
party
to
file
an
application for attorney's fees within thirty days of final
judgment in the action. 28 U.S.C. § 2412(d)(1)(B).
requirement has been met here.
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This
3.
Claimant's Net Worth
Plaintiff's
counsel
represents
to
the
Court
that
Karboski's net worth was less than $2 million at the time this
action was filed (Doc. # 16-4 at ¶ 13), and the Commissioner
does not contest this assertion. Accordingly, the Court finds
this requirement to be satisfied.
4.
Lack of Substantial Justification
The burden of proving substantial justification is on the
government. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir.
1987).
"Therefore, unless the Commissioner comes forth and
satisfies his burden, the government's position will be deemed
not substantially justified." Kimble ex rel. A.G.K. v. Astrue,
No. 6:11-cv-1063, 2012 WL 5877547, at *1 (M.D. Fla. Nov. 20,
2012).
In this case, the Commissioner does not dispute the
issue of substantial justification.
that
the
government's
position
Thus, the Court finds
was
not
substantially
justified.
5.
No Special Circumstances
Finally, the Commissioner has not made a claim that any
special circumstances exist that countenance against the
awarding of fees.
Accordingly, the Court finds no special
circumstances indicating an award of fees would be unjust.
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B.
Amount of Fees
Having determined Plaintiff is eligible for an award of
fees under the EAJA, the Court now turns to the reasonableness
of the amount of fees sought.
Plaintiff requests an award of
$4,536.65 in attorney's fees, representing 24.7 hours at an
hourly rate of $183.67 as well as costs in the amount of
$350.00.
The amount of attorney's fees to be awarded "shall be
based upon the prevailing market rates for the kind and
quality of the service furnished," except that attorney's fees
shall not exceed $125 per hour unless the Court determines an
increase in the cost of living or a "special factor" justifies
a higher fee award.
28 U.S.C. § 2412(d)(2)(A).
The Court accepts Plaintiff's contention that a statutory
cost of living adjustment in the hourly rate is appropriate.
Here,
the
proposed
hourly
rate
is
$183.67,
and
the
Commissioner does not oppose Plaintiff's proposed hourly rate.
Thus, the Court will adopt the proposed hourly rate.
The
Court also determines that 24.7 hours of attorney time is
reasonable in this case.
C.
Payment of Fees
The Supreme Court established in Astrue v. Ratliff, 130
S.Ct. 2521 (2010), that EAJA payments may be made directly to
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a plaintiff's attorney only in cases in which the plaintiff
does not owe a debt to the government and the plaintiff has
assigned the right to EAJA fees to her attorney.
Here, the
record reflects that Karboski has assigned his right to
receive EAJA fees to his counsel.
(Doc. # 16-3 at 1).
In
addition, counsel represents that "the client has no objection
to my collection of these fees." (Doc. # 16-4 at ¶ 12).
However, counsel indicates in his memorandum, "attorney
fees under the Equal Access to Justice Act should be awarded
and made payable to Plaintiff's attorney pursuant to the
assignment after it is determined that the claimant does not
have outstanding federal debt subject to collection." (Doc. #
17 at 4)(emphasis added).
The parties have not supplied the
Court with information regarding whether Karboski owes a debt
to the federal government.
Based upon this open issue, the
Court will leave to the parties the determination of to whom
the fees shall be paid.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff's Unopposed Motion for Award of Attorney's Fees
Pursuant to Equal Access to Justice Act 28 U.S.C. § 2412 (Doc.
# 16) GRANTED as specified herein.
DONE and ORDERED in Chambers in Tampa, Florida, this 16th
-5-
day of August, 2013.
Copies: All Counsel of Record
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