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LIBERMAN v. BARNHART
November 19, 2002
SHAY LIBERMAN, PLAINTIFF,
JO ANNE B. BARNHART COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge
This case involves an application for social security disability
insurance benefits. Presently before the Court is a motion by the pro se
plaintiff Shay Liberman ("Liberman" or the "plaintiff") to recover
attorneys' fees, expenses and costs pursuant to the Equal Access to
Justice Act (the "EAJA"), 28 U.S.C. § 2412(d) and the Social Security
Act, 42 U.S.C. § 406(b).
On January 28, 1998, the plaintiff filed a complaint in the Eastern
District of New York seeking review of a final administrative decision of
the Commissioner of the Social Security Administration (the
"Commissioner") which denied his application for social security
disability insurance benefits. Thereafter, the Commissioner moved to
remand the case for further administrative proceedings because, among
other things, the Administrative Law Judge failed to note the weight that
he gave to the opinion of the treating physician and his reasons for
finding that the plaintiff's testimony of pain and functional limitations
was not credible. On August 31, 1999, the Court granted the motion
remanding the case for further administrative proceedings. Unsatisfied
with that decision, the plaintiff filed an appeal with the Second
Circuit. On February 17, 2000, the Second Circuit dismissed the appeal
because the remand order was not final under 28 U.S.C. § 1291. On
June 14, 2001, the plaintiff filed a motion to recover attorneys' fees,
expenses and costs pursuant to the EAJA and the Social Security Act.
The EAJA provides in pertinent part that:
Except as otherwise specifically provided by statute,
a court shall award to a prevailing party other than
the United States fees and other expenses . . .
incurred by that party in any civil 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). For the purposes of
this subsection "`fees and other expenses' includes
. . . reasonable attorney fees. . . ."
28 U.S.C. § 2412(d)(2)(A). It is well-settled that
a pro se litigant is not entitled to attorneys' fees
under the EAJA. Sec. & Exch. Comm'n v. Price
Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994). Because
the plaintiff proceeded pro se at all stages of this
action before the district court and the Second
Circuit, he is not entitled to attorneys' fees under
Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented
before the court by an attorney, the court may
determine and allow as part of its judgment a
reasonable fee for such representation, not in excess
of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such
judgment. . . .
42 U.S.C. § 406(b)(1). Because the plaintiff was
not represented by counsel at any point during the
stages of this action, he is not entitled to attorneys'
fees under the Social Security Act.
Accordingly, his motion for attorneys' ...
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