Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kobylarz v. Berryhill

United States District Court, S.D. Texas, Corpus Christi Division

April 20, 2018

WALTER MICHAEL KOBYLARZ JR., Plaintiff,
v.
NANCY A BERRYHILL, Defendant.

          MEMORANDUM AND RECOMMEDATION

          B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE

         On February 22, 2018, following an unopposed motion for remand filed by Defendant, the Court entered final judgment remanding this case to the Commissioner of Social Security for further proceedings (D.E. 16). On March 23, 2018, Plaintiff filed an application for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA)(D.E. 19). Plaintiff seeks fees and costs in the amount of $3, 994.61. Defendant filed a response on March 27, 2018 in which she stated that she is not opposed to the award of attorney's fees and costs in the amount sought by Plaintiff (D.E. 20). Defendant asks the Court to order the Deputy Commissioner to make payment directly to Plaintiff in care of Plaintiff's attorney.

         APPLICABLE LAW

         In a civil suit brought against the United States or one of its agencies, the prevailing party is entitled to reasonable attorney's fees and costs under the EAJA, unless the Court finds that the position of the government was substantially justified or the presence of special circumstances make an award unjust. 28 U.S.C. § 2412. Plaintiff seeks EAJA fees for 4.30 hours of attorney work at the rate of $190.30 per hour and for 13.40 hours of attorney work at the rate of $192.80 per hour.

         A. Prevailing party

         The District Court remanded the case to the Commissioner, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further consideration in accordance with the law (D.E. 16). A social security claimant is a prevailing party under such circumstances. Shalala v. Shaefer, 509 U.S. 292, 113 S.Ct. 2625, 2631-32 (1993).

         B. Eligibility for Award

         Plaintiff's counsel asserts that upon information and belief, Plaintiff is eligible to receive an award of fees and expenses under 28 U.S.C. § 2412(d)(2)(B).[1] Defendant has not argued to the contrary.

         C. Position of the Government

         For an award of fees under EAJA, Plaintiff must show that the position of the government was not substantially justified. 28 U.S.C. § 2412(d)(1)(A). To be substantially justified, the United States' position must have a "reasonable basis both in law and in fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted). Put another way, "substantially justified" means "justified to a degree that could satisfy a reasonable person." Id.It is more than merely undeserving of sanctions for frivolousness, but less than "clearly and convincingly justified." Id.at 566, 568. Plaintiff's claim was remanded pursuant to the fourth sentence of 42 U.S.C. § 405 (g), for further administrative action. Defendant does not argue that the position of the Commissioner was substantially justified.

         D. Number of Hours Spent

         The starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. Also, the district court should exclude from the initial fee calculation hours that were not reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1982). "To determine the number of hours reasonably spent, one must first determine the number of hours actually spent and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary." Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).

         Counsel requests compensation for 18.70 attorney hours (Ex. 2 to Pet. for Att. Fees, D.E. 19 at pp. 14-15). The time spent appears reasonable in view of the size of the administrative record and the detailed legal and factual arguments raised in Plaintiff's briefs.

         E. Hourly Rate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.