United States District Court, S.D. Alabama, Southern Division
STEVEN G. CRYAR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSON JUDGE
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
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).
“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)).
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.
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).
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
Substantially Justified Position or Special
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).
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.
Amount of ...