The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case arises out of an alleged failure of the defendant
Kenneth F. Apfel, Commissioner of the Social Security
Administration (the "Commissioner" or a "defendant") to deduct
money from Social Security Disability benefits received by
Thomas Fox ("Fox"), the ex-husband of Donna Marschok ("Marschok"
or the "plaintiff"), and to forward those deducted monies to the
plaintiff for the purpose of satisfying Fox's overdue child
support and alimony — now known as maintenance — payments. The
plaintiff commenced this action by filing a complaint on June 2,
2000, in which she alleged violations of the New York State
Support Enforcement Act of 1985, see New York Civil Practice
Law and Rules ("CPLR") § 5241. On October 10, 2000, this Court
approved a stipulation of discontinuance, which states, "Whereas
the Defendant, Commissioner, has provided, and will continue to
provide, the relief sought, It is hereby stipulated
and agreed by and between the parties hereto, by and through
their respective attorneys, that this action be discontinued
Presently before the Court is an application by the plaintiff,
pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412, for an award of fees and expenses as the prevailing
party in a civil action against the United States.
The following facts are taken from the complaint and should
not be considered the factual or legal findings of this Court.
In March 1980, Donna Marschok and Thomas Fox were married and on
August 11, 1980, their daughter, Kimberly Dawn Fox, was born.
Marschok and Fox were divorced on August 8, 1985, and pursuant
to an order of the Supreme Court, Suffolk County, Marschok was
awarded custody of Kimberly. The Supreme Court ordered Fox to
pay the plaintiff alimony — now known as "maintenance" — and
child support totaling the sum of $150 per week. The court also
awarded Marschok the sum of $5,140, in arrears, pursuant to a
previous court order.
On September 24, 1991, Marschok commenced an action in the
Family Court, Suffolk County, seeking to establish the amount of
past support Fox owed her and to increase Fox's child support
obligation. On or about December 16, 1991, Marschok and Fox
settled that action by entering into an "Agreement to Support."
In particular, the parties agreed that Fox owed Marschok the sum
of $30,420, which he would pay in weekly installments over a
10-year period. The parties also agreed that Fox would pay
Marschok the weekly sum of $75 in future child support. In an
order dated March 13, 1992, the Family Court, Suffolk County,
approved and adopted the Agreement to Support. Thereafter, Fox
failed to make a single payment owed to Marschok pursuant to the
Agreement to Support.
Just prior to Kimberly Fox's eighteenth birthday, on August
11, 1998, Marschok learned that Fox was receiving Social
Security Disability benefits and began deducting the sum of
$2412 from those benefits. After Kimberly turned 18, Marschok
tried to continue deducting her support payments from Fox's
disability benefits, but Fox refused to consent to such
On November 9, 1999, pursuant to CPLR § 5241, the plaintiff
served a Notice of Income Execution for Support Enforcement
("Notice of Income Execution") on Fox. The Notice of Income
Execution stated that Fox owed a total of $55,320 and advised
Fox that 60% of his disability benefits would be deducted from
his check and given to Marschok unless he asserted a mistake of
fact. Fox did not raise such a defense.
On December 6, 1999, again pursuant to CPLR § 5241, the
plaintiff served the defendant United States of America and the
defendant Commissioner with a Notice of Income Deduction.
Marschok alleges that because defendant Commissioner is an
"Income Payor," as that term is defined in CPLR §
5241(a)(5)(ii), the Commissioner is required to deduct a portion
of Fox's benefits and forward the money to Marschok. Although
Fox continued to receive Social Security Disability benefits,
defendant Commissioner allegedly failed to deduct and forward
the monies due to the plaintiff.
The government does not dispute that Marschok is the
prevailing party; that counsel for the plaintiff is entitled to
attorney's fees; or that counsel spent 5.8 hours working on this
case. However, the government does object to the hourly rate
claimed by plaintiff's counsel on the ground that it exceeds the
statutory cap of $125 per hour pursuant to
28 U.S.C. § 2412(d)(2)(A). Thus, the government requests that the Court set
the hourly rate of compensation for attorney's fees at the
statutory rate of $125 per hour.
The purpose of the EAJA is to ease the economic imbalance
between an individual claimant and the United States in order to
reduce the likelihood that challenges to unreasonable
bureaucratic actions will be deterred by the high cost of
litigating against the Government. Reyes v. Secretary of Health
and Human Services, 807 F. Supp. 293, 297 (S.D.N.Y.
1992),(citing Environmental Defense Fund, Inc. v. Watt,
722 F.2d 1081, 1086 (2d Cir. 1983)). To this end, the EAJA provides
that a court shall award fees and expenses to the prevailing
party in an action brought by or against the Government, "unless
the court finds that the position of the United States was
substantially justified or the special circumstances make an
award unjust." 28 U.S.C. § 2412(d). In particular, the statute
requires proof: (1) that the claimant is a prevailing party; (2)
that the Government's position was not substantially justified;
(3) that no special circumstances make an award unjust; and (4)
that the fee application be submitted to the court within 30
days of the entry of the final judgment. Kerin v. United States
Postal Service, 218 F.3d 185, 189 (2d Cir. 2000) (setting forth
the statutory requirements).
Marschok's status as the prevailing party and the timely
application for fees are not in dispute; therefore those
requirements have been met. In addition, the Government raises
no "special circumstances" that would make an award ...