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Davis v. Colvin

United States District Court, Second Circuit

December 11, 2013

KATHLEEN DAVIS, O/B/O Natalie Maitland, Deceased, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Syracuse, New York, Attorneys for Plaintiff.

JASON P. PECK, ESQ., SOCIAL SECURITY ADMINISTRATION OFFICE OF REGIONAL GENERAL COUNSEL Region II, New York, New York, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff moves for an award of attorney's fees and costs in the sum of $8, 691.51, to be paid directly to her attorney under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. See Dkt. No. 18. The Commissioner has not opposed the motion.

II. DISCUSSION

A. Attorney's fees and costs

The EAJA provides that

a court shall award to a prevailing party... fees and other expenses... incurred by that party in any civil action... 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). To prevail in a motion for attorney's fees under the EAJA, a plaintiff must demonstrate the following: (1) her motion is timely, (2) she is the prevailing party, (3) she is eligible to receive an award, (4) an itemized statement from any attorney appearing on her behalf that illustrates the rate at which the attorney's proposed fees were computed, and (5) the position of the United States was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B).

The amount of an attorney-fee award under the EAJA is determined by examining the amount of time expended and the attorney's rate, which is capped by statute. See Hogan v. Astrue, 539 F.Supp.2d 680, 682 (W.D.N.Y. 2008) (citations omitted). The court has broad discretion in determining whether the amount of time an attorney has expended is reasonable; however, the burden to prove reasonableness is on the plaintiff. See id. at 682 (citing Aston v. Sec'y of Health and Human Svcs., 808 F.2d 9, 11 (2d Cir. 1986)).

In this case, Plaintiff claims that an EAJA award is available and should be awarded because (1) her application is timely; (2) she was the prevailing party; (3) her net worth did not exceed two million dollars at the time of trial; and (4) the position of the United States was not substantially justified.

The substantially justified standard "[i]s intended to caution agencies to carefully evaluate their case and not to pursue those which are weak or tenuous. At the same time, the language of the section protects the government when its case, though not prevailing, has a reasonable basis in law and fact." Cohen v. Bowen, 837 F.2d 582, 585 (2d Cir. 1987) (citation omitted); see also Henriquez v. Chater, No. 94 Civ. 7699, 1997 WL 45351, *1-*2 (S.D.N.Y. Feb. 5, 1997); Butts v. Astrue, 565 F.Supp.2d 403, 406 (N.D.N.Y. 2008) (citing 28 U.S.C. § 2412(d)(1)(B)). Once the plaintiff alleges that the government's position was not substantially justified, the burden shifts to the government to establish that its opposition was substantially justified. See Commodity Futures Trading Comm'n v. Dunn, 169 F.3d 785, 786 (2d Cir. 1999). In order to determine whether the government was "substantially justified, courts are to apply a standard of reasonableness." Green v. Bowen, 877 F.2d 204, 207 (2d Cir. 1989) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The legislative history of the EAJA indicates that the substantial justification standard "should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case." Cohen, 837 F.2d at 585 (citations and internal quotation marks omitted). However, the government has the burden to present a "strong showing" to prove substantial justification. Envtl. Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983); see also Rosado v. Bowen, 823 F.2d 40, 42 (2d Cir. 1987) (holding that the government must show that its action was justified in law and fact). The government cannot prevail by arguing that it was substantially justified in some of the positions it took if it was not substantially justified on the issue that caused the court to find in the plaintiff's favor. See Maxey v. Chater, No. 93-CV-606, 1996 WL 492906, *3 (N.D.N.Y. Aug. 28, 1996) (citing Myers v. Sullivan, 916 F.2d 659, 666 n.5 (11th Cir. 1990)).

In the present matter, Plaintiff contends that Defendant's position was not substantially justified. Since the motion is unopposed by Defendant, a lack of substantial justification is "impliedly admitted." Livingston v. Sec. of Health and Human Servs., No. Civ-87-622E, 1989 WL 122085, *1 (W.D.N.Y. Oct. 13, 1989). Having reviewed the record in this matter, the Court finds that the Government's position ...


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