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Burton v. Colvin

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

September 26, 2017

MARY DENISE BURTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff MARY DENISE BURTON (hereinafter, “the Plaintiff”) has filed and served a motion for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), and Federal Rule of Civil Procedure 54(d)(2) (Docs. 29, 30), requesting an award of $5, 463.01 in attorney's fees and other expenses from the Defendant Commissioner of Social Security. The Commissioner has filed no response to the motion despite being given the opportunity, the deadline to do so has passed, and the motion is now under submission. See (Doc. 31); S.D. Ala. CivLR 7(c). Upon consideration, the Court finds the Plaintiff's motion for attorney's fees under EAJA (Docs. 29, 30) is due to be GRANTED in part and DENIED in part.[1]

         I. Analysis

         “The 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). “Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a ‘prevailing party'; (2) that the Government's position was not ‘substantially justified'; (3) that no ‘special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.” Comm'r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990).

         a. Timeliness

         “The 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). Where, as here, “the district court enters a ‘sentence four' remand order[ under 42 U.S.C. § 405(g)], that judgment is appealable.” Newsome, 8 F.3d 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)).

         Because a United States officer sued in an official capacity is a party to this action, the time to appeal that judgment expired after 60 days from May 10, 2017, the date the Court entered its “sentence four” remand order and judgment (Docs. 27, 28). See Fed. R. App. P. 4(a)(1)(B). Because the 60th day after that date fell on July 9, 2017, a Sunday, the judgment became no longer appealable after Monday, July 10, 2017. See Fed. R. App. P. 26(a)(1)(C). Because the Plaintiff filed his motion within 30 days of that date, on August 7, 2017, the motion is timely.[2]

         b. Prevailing Party

         With certain inapplicable exceptions, an individual qualifies as a “party” under EAJA if the individual's “net worth did not exceed $2, 000, 000 at the time the civil action was filed.” 28 U.S.C. § 2412(d)(2)(B). The Plaintiff has submitted a 28 U.S.C. § 1746 declaration averring that “[a]t the time that this action was begun, [her] net worth was less than $2, 000, 000.00” (Doc. 30-5 at 2), and the Commissioner does not dispute this assertion. Accordingly, the Plaintiff qualifies as a “party” for purposes of the EAJA. See 28 U.S.C. § 2412(d)(2)(B).

         Because the Plaintiff received a remand of a final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g), she is thus a “prevailing” party under EAJA. See Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Newsome, 8 F.3d at 777 (“Courts have routinely awarded EAJA attorney's fees to claimants in Social Security cases who satisfy the statutory conditions.”); Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990) (“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.”).

         c. Substantially Justified Position or Special Circumstances

         An EAJA applicant is only required to allege that the Government's position was “not substantially justified.” Scarborough v. Principi, 541 U.S. 401, 414-15 (2004). “The burden of establishing that the position of the United States was substantially justified…must be shouldered by the Government.” Id. at 414. “The 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.” United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (citations and quotations omitted).

         The Plaintiff has alleged “the Commissioner was not substantially justified.” (Doc. 30-6 at 2). The Commissioner has not attempted to rebut that allegation, and there are no special circumstances apparent from the record which countenance against the awarding of fees. Thus, the Court finds that the Plaintiff is entitled to an award of fees under EAJA.

         d. ...


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