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Cryar v. Berryhill

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

July 18, 2018

STEVEN G. CRYAR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON JUDGE

         Plaintiff Steven G. Cryar (“the Plaintiff”) has filed and served a motion for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. 27), and a separate supporting memorandum (Doc. 28), requesting an award of $1, 772.63 in attorneys' fees and expenses from the Defendant Commissioner of Social Security (“the Commissioner”). The Commissioner timely filed and served a response (Doc. 31) to the motion stating that she does not object to an award of fees and expenses under EAJA to the Plaintiff in the amount requested. Upon consideration, the Court finds the Plaintiff's motion for attorneys' fees and expenses under EAJA (Doc. 27) 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 May 7, 2018, 60 days from the date the Court entered its “sentence four” remand order and judgment (Docs. 25, 26), March 8, 2018. See Fed. R. App. P. 4(a)(1)(B)(iii). Because the Plaintiff filed and served his motion within 30 days of that date, on May 16, 2018, 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). Based on the undisputed representations in the Plaintiff's motion for leave to proceed without prepayment of fees (Doc. 2) filed contemporaneously with the complaint, which is in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn declaration made under penalty of perjury, the Court finds that the Plaintiff qualifies as a “party” for purposes of 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), he is therefore 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 that “the position of the government in this case was not substantially justified…” (Doc. 28 at 1 (quotation marks omitted)). 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 under EAJA.

         d. Amount of ...


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