Oliver v. Colvin

Filing 13

ORDER granting 12 Motion for Attorney Fees. Signed by Senior Judge Graham Mullen on 8/27/2018. (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
NO. 1:16-cv-386-GCM

FRANKLIN ANTHONY OLIVER,
Plaintiff,
v.
ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

THIS MATTER is before the Court on the Motion for Attorney Fees filed by Plaintiff
on July 17, 2018. (Doc. No. 12). Defendant has advised that it has no objection to this Motion.
Pursuant to the Equal Access to Justice Act, a prevailing party may be awarded a
judgment for costs. 28 U.S.C. § 2412(a)(1). Further, a prevailing party is entitled to fees and
other expenses “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).
“[A]ttorney 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).
Here, the Court finds, and the Government does not dispute, that the position of the
United States was not substantially justified in this matter. The Court further finds that the living
expenses and particular qualifications of Plaintiff’s attorney justify an increase in the hourly rate
of attorney fees.

IT IS THEREFORE ORDERED that the Plaintiff’s Motion for Attorney Fees (Doc.
No. 12) is GRANTED, to the extent that the Court will award attorney fees in the amount of
$3,825.74, and that pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), the fee award will first be
subject to offset of any debt Plaintiff may owe to the United States. The Commissioner will
determine whether Plaintiff owes a debt to the United States. If so, the debt will be satisfied
first, and if any funds remain, they will be made payable to Plaintiff and mailed to Plaintiff’s
counsel. If the Commissioner determines that the Plaintiff does not owe a federal debt, the full
amount will be made payable to Plaintiff’s counsel consistent with Plaintiff’s assignment of said
fee to his attorney. Plaintiff shall also be paid $400.00 in costs from the U.S. Department of the
Treasury pursuant to 28 U.S.C. § 2412(a)(1).
SO ORDERED.

Signed: August 27, 2018