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Cocozziello v. Colvin

United States District Court, N.D. New York

October 14, 2014

ALEX COCOZZIELLO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

PETER A. GORTON, ESQ., LACHMAN & GORTON, Endicott, New York, Attorney for Plaintiff.

DENNIS J. CANNING, ESQ., SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II, New York, New York, Attorney for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTING, District Judge.

I. INTRODUCTION

On November 6, 2013, Plaintiff commenced suit pursuant to 42 U.S.C. § 405(g) seeking a review of the Commissioner's decision denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). See Dkt. No. 1. On March 28, 2014, the parties stipulated that this action be remanded to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for the purpose of further administrative proceedings. See Dkt. No. 15. Judgment was entered that same day. See Dkt. No. 16.

Currently before the Court is Plaintiff's motion for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Dkt. No. 17 at 1. The Commissioner has not opposed the motion.

II. DISCUSSION

Pursuant to the EAJA,

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). In order for a party to be awarded attorney's fees under the EAJA, the plaintiff must: 1) demonstrate he or she is the prevailing party; 2) demonstrate he or she is eligible to receive an award; 3) enumerate the amount sought; 4) show the rate at which fees were computed; and 5) allege that 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)).

Courts have held that the substantially justified standard "is 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. 1988) (quoting H.R. Rep. No. 96-1418, 96th Cong., 2d. Sess., 11(1980), reprinted in 1980 U.S.C.C.A.N. 4993); see also Henriquez v. Chater, No. 94 Civ. 7699, 1997 WL 45351, *1-2 (S.D.N.Y. Feb. 5, 1997). The party seeking attorney's fees must allege that the position of the Government was not "substantially justified." 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 has done so, 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 of proof on the substantial justification issue and a "strong showing" is required to satisfy this burden. 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 all the positions. 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) (holding that the government must establish that all its litigation positions were substantially justified)).

In the present matter, Plaintiff claims that an EAJA award is available as: (1) Plaintiff's net worth did not exceed $2, 000, 000 at the time the action was filed; (2) Plaintiff was a "prevailing party" in a case against the Government; and (3) the position of the Government was not substantially justified. Dkt. No. 17 at 1. Since Plaintiff contends that the Government's position was not substantially justified and the instant motion is unopposed by the Government, lack of substantial justification is ...


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