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Hollinger v. Colvin

United States District Court, S.D. Alabama, Southern Division

May 15, 2014

TAMMY HOLLINGER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

On February 10, 2014, the Court adopted as its opinion ( see Doc. 22) the undersigned United States Magistrate Judge's recommendation that this matter be remanded to the Commissioner (Doc. 20), and entered judgment (Doc. 23) accordingly. Now before the undersigned, again pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(3), for entry of a report and recommendation, is Plaintiff's timely application for an award of attorney's fees and litigation expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the "EAJA") (Doc. 24), filed April 22, 2014, and the Commissioner's objection to the application (Doc. 26), filed May 6, 2014.

Upon consideration of all pertinent materials contained in this file, it is RECOMMENDED that Plaintiff receive reasonable attorney's fees and related litigation expenses totaling $4, 810.71 under the EAJA for legal services rendered by her attorney in this Court. See Astrue v. Ratliff, ___ U.S. ___, 130 S.Ct. 2521, 2526 & 2526-27 (2010) ("Ratliff [] asserts that subsection (d)(1)(A)'s use of the verb award' renders § 2412(d) fees payable directly to a prevailing party's attorney[.]... We disagree.... The plain meaning of the word award' in subsection (d)(1)(A) is [] that the court shall give or assign by... judicial determination' to the prevailing party' (here, Ratliff's client Ree) attorney's fees in the amount sought and substantiated under, inter alia, subsection (d)(1)(B).... The fact that the statute awards to the prevailing party fees in which her attorney may have a beneficial interest or a contractual right does not establish that the statute awards' the fees directly to the attorney. For the reasons we have explained, the statute's plain text does the opposite-it awards' the fees to the litigant[.]"); see also Brown v. Astrue, 271 Fed.App'x 741, 743 (10th Cir. Mar. 27, 2008) ("The district court correctly held that Mr. Brown's assignment of his right in the fees award to counsel does not overcome the clear EAJA mandate that the award is to him as the prevailing party, and the fees belong to him. Thus, the district court correctly declined to award the fees directly to counsel.").

I. Discussion

A. Procedural Background

On February 10, 2014, this Court entered a Rule 58 judgment reversing and remanding this cause to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. (Doc. 23; see also Doc. 22 order adopting report and recommendation of the Magistrate Judge (Doc. 20).) In the application for an award of attorney's fees and litigation expenses under the EAJA (Doc. 24), filed April 22, 2014, Plaintiff Tammy Hollinger requests attorney's fees in the amount of $4, 671.75, to compensate her attorney for the time (25 hours) spent representing her before this Court as of the date of the filing of the fee application, and litigation expenses in the amount of $138.96 ( see generally id. ). In her objection to Hollinger's application, the Commissioner does not contest the reasonableness of the requested attorney's fees and expenses; instead, she contends that no attorney's fees should be awarded in this matter because the Commissioner's position in this litigation was substantially justified. ( See generally Doc. 23.)

B. Substantial Justification and Prevailing Party

The Equal Access to Justice Act requires a district court to "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..., 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) (emphasis added).

While "[s]ubstantially justified' is one of the myriad phrases in the law that has no precise or fixed definition[, t]he Supreme Court has said that it means justified in substance or in the main.'" Grieves v. Astrue, 600 F.Supp.2d 995, 999 (N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. ("A position that is substantially justified' must have a reasonable basis both in law and in fact.'" (quoting Pierce, 487 U.S. at 565)); cf. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (a position is substantially justified if a "reasonable person could believe the position was correct").

EAJA decisions necessarily involve exercises of discretion because of the sheer impracticability of formulating a rule of decision in such cases. Questions that arise under the Act, like many that arise in litigation generally, are not amenable to regulation by rule because they involve multifarious, fleeting, special, narrow facts that utterly resist generalization-at least, for the time being.

Grieves, 600 F.Supp.2d at 999 (internal citations and quotation marks omitted and other modifications to original).

It is also essential to recall that "a position can be justified even though it is not correct, " Pierce, 487 U.S. at 566, n.2, and "[the government] could take a position that is substantially justified, yet lose [on the merits]." Id. at 569. Analysis of questions of substantial justification must take into account the government's position in the underlying action and the litigation posture it took while defending the validity of that action in court. 28 U.S.C. § 2412(d)(2)(D). But, substantial justification should not be confused with the "substantial evidence" standard that applies to a court's initial review of the case. Indeed, the Supreme Court has cautioned that consideration of a fee petition "should not result in a second major litigation.'" Pierce, 487 U.S. at 563. Thus, an EAJA petition requires the court to revisit the legal and factual circumstances of this case from a different perspective-the elusive standard of substantial justification-than it did in reviewing the record on the initial go-round to determine whether there was substantial evidence to support the conclusion.

Id. at 1000 (internal citations modified and some omitted); but see Cockerham v. Secretary of Health & Human Servs., CIV.A. No. 87-1276, 1990 WL 11355, at *3 (E.D. La. Jan. 31, 1990) ("[T]he corresponding definition of substantially justified' used in the EAJA means to be justified in substance or in the main... the action must be justified to a degree that could satisfy a reasonable person, and must have a reasonable basis in both law and fact.' Clearly, definitions of the terms substantial evidence' and substantially justified' are analogous; a reasonable mind must conclude that when the [Commissioner]'s position was not based upon substantial evidence, it cannot be found substantially justified." (quoting Pierce, 487 U.S. at 565)); Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624, at *5 (N.D. Ill. Mar. 21, 2003) ("When a court finds [] a lack of connection between the evidence in the record and an ALJ's conclusion, it is appropriate to find the Commissioner's position not substantially justified." (citations omitted)).

Here, the Court found that the Commissioner's decision denying Hollinger benefits should be remanded because the pain standard as applied by the ALJ was flawed since the Court could not determine whether the ALJ's credibility finding-a necessary component of the applicable pain analysis-was supported by substantial evidence. See Hollinger v. Colvin, Civil Action No. 13-00127-CG-N, 2014 WL 518025, at *3-6 (S.D. Ala. Feb. 10, 2014); compare id. at *3 ("once the pain standard is satisfied, the issue becomes one of credibility"), with id. at *4 ("A clearly articulated credibility determination [must be] supported by ...


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