United States District Court, N.D. Alabama, Northern Division
PAUL M. THOMAS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
5, 2017, Plaintiff Paul M. Thomas (hereinafter, “the
Plaintiff”) filed and served an Application for
Attorney Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”) (Doc. 23), requesting
an award of $1, 752.17 in attorney's fees from the
Defendant Commissioner of Social Security. On July 20, 2017,
the Commissioner filed and served a response stating that she
does not oppose the motion or the amount requested. (Doc.
25). Upon consideration, the Court finds the Plaintiff's
EAJA fee application (Doc. 23) is due to be
EAJA provides that the district court ‘shall award to
the prevailing party other than the United States fees and
other expenses ... incurred by that party in any civil action
(other than cases sounding in tort), 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.' ”
Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993)
(quoting 28 U.S.C. § 2412(d)(1)(A)-(B)) (footnotes
omitted). “[T]hree statutory conditions must be
satisfied before a district court can award EAJA
attorney's fees. First, the claimant must file an
application for fees within thirty days of final judgment in
the action… Second, assuming the fee application was
timely filed, the claimant must qualify as a prevailing
party… Finally, if the claimant is a prevailing party
who timely filed an EAJA fee application, then the claimant
is entitled to receive attorney's fees unless the
government can establish that its positions were
substantially justified or that there exist special
circumstances which countenance against the awarding of
fees.” Myers v. Sullivan, 916 F.2d 659, 666
(11th Cir. 1990) (citation and quotation marks omitted).
Equal Access to Justice Act (‘EAJA”')
provides that a ‘party seeking an award of fees and
other expenses shall, within thirty days of final judgment in
the action, submit to the court an application for fees and
other expenses....” 28 U.S.C. § 2412(d)(1)(B)
(1982). It is settled that a ‘final judgment' means
that the judgment is final and not appealable. 28 U.S.C.
§ 2412(d)(2)(G).” United States v. J.H.T.,
Inc., 872 F.2d 373, 375 (11th Cir. 1989). “[T]his
timely filing requirement is jurisdictional in nature; that
is, a claimant's failure to file an EAJA application
within thirty days of a final judgment no longer appealable
precludes the district court from considering the merits of
the fee application.” Newsome, 8 F.3d at 777
(citing Myers, 916 F.2d at 672-73).
as here, “the district court enters a ‘sentence
four' remand order[ under 42 U.S.C. § 405(g)], that
judgment is appealable.” Id. at 778.
“[W]hen a remand was pursuant to sentence four, the
30-day filing period for applications for EAJA fees
‘begins after the final judgment (‘affirming,
modifying, or reversing') is entered by the [district]
court and the appeal period has run, so that the judgment is
no longer appealable.' ” Id. (quoting
Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
Court entered its “sentence four” remand order
and judgment on June 5, 2017. (See Docs. 22, 23).
Because a United States officer sued in an official capacity
is a party to this action, the time to appeal that judgment
expired after sixty (60) days from June 5, 2017 (i.e. after
August 4, 2017). See Fed. R. App. P. 4(a)(1)(B),
26(a)(1)(C). Thus, the judgment will become no longer
appealable after August 4, 2017. See Fed. R. App. P.
26(a)(1)(C). Because the Plaintiff filed her EAJA fee
application on July 5, 2017, the application is timely, and
the Court has jurisdiction to consider its merits.
action, the Plaintiff won a remand of a final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g),
thus making her a “prevailing party” entitled to
EAJA fees. See Shalala v. Schaefer, 509 U.S. 292,
301-02 (1993). “Courts have routinely awarded EAJA
attorney's fees to claimants in Social Security cases who
satisfy the statutory conditions.” Newsome, 8
F.3d at 777. See also Myers, 916 F.2d at 666
(“Since the EAJA's enactment, the vast majority of
EAJA awards have gone to claimants who succeeded in
challenging contrary benefits decisions made by the Secretary
of Health and Human Services.”).
government's position is substantially justified under
the EAJA when it is justified to a degree that would satisfy
a reasonable person-i.e. when it has a reasonable basis in
both law and fact. The government bears the burden of showing
that its position was substantially justified.”
United States v. Jones, 125 F.3d 1418, 1425 (11th
Cir. 1997) (citations and quotations omitted).
Commissioner has not attempted to show that her position was
substantially justified and indeed does not oppose an award
of EAJA fees to the Plaintiff. (See Doc. 25). Given
the Commissioner's position, and there being apparent
from the record no special circumstances which countenance
against the ...