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Ellis v. Berryhill

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

August 28, 2018

ELAINE DIANNE ELLIS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Elaine Dianne Ellis (“the Plaintiff”) has filed and served a motion for an award of fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. 32), which seeks $8, 071.35 in attorneys' fees from the Defendant Commissioner of Social Security (“the Commissioner”). The Commissioner timely filed and served a response (Doc. 36) in partial opposition to the amount of fees sought, and the parties later filed a joint stipulation stating that they “STIPULATE and AGREE that the Defendant will award Plaintiff $5, 750.00 in attorney's fees in full satisfaction of any and all claims arising under the Equal Access to Justice Act…” (Doc. 37). Upon consideration, the Court finds the Plaintiff's motion for attorney's fees under EAJA (Doc. 32) is due to be GRANTED in part and DENIED in part, such that the Court will award the amount of fees to which the parties have stipulated.[1]

         I. Analysis

         As is relevant here, the EAJA provides that “a 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…” 28 U.S.C. § 2412(d)(1)(A). Eligibility for an award of “fees and other expenses” under § 2412(d)(1)(A) “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, INS 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 v. Shalala, 8 F.3d 775, 778 (11th Cir. 1993). “[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)).

         Final judgment was entered on November 14, 2017 (Doc. 31), and no appeal was taken from that judgment. Because a United States officer sued in an official capacity is a party to this action, the time to appeal was 60 days from the date of entry of final judgment, excluding the date of entry. See Fed. R. App. P. 4(a)(1)(B)(iii); Fed. R. App. P. 26(a)(1)(A). Because the 60th day fell on January 13, 2018, a Saturday, and because the following Monday was the Birthday of Martin Luther King, Jr., a legal holiday, see 5 U.S.C. § 6103(a), the time for an appeal expired after Tuesday, January 16, 2018. See Fed. R. App. P. 26(a)(1)(C). Because the Plaintiff filed and served her motion within 30 days of that date, on February 12, 2018, the motion is timely.[2]

         b. Prevailing Party

         An individual qualifies as a “party” under § 2414(d)(1)(A) 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. And because the Plaintiff received a remand of a final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g) (see Doc. 30), she is 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). See also 28 U.S.C. § 2412(d)(1)(B) (a motion for EAJA fees and expenses must “allege that the position of the United States was not substantially justified”). “Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B). “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 burden of establishing that the position of the United States was substantially justified…must be shouldered by the Government.” Scarborough, 541 U.S. at 414-15.

         The Plaintiff has alleged “that the Defendant's position was not substantially justified.” (Doc. 32 at 3). 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 Government's position in this action was not substantially justified, and the Plaintiff is therefore entitled to an award of fees and other expenses under EAJA.

         d. Amount of Fees

         The “fees and other expenses” that a prevailing party is entitled to receive under § 2412(d)(1)(A) “includes…reasonable attorney fees…” 28 U.S.C. § 2412(d)(2)(A). The Plaintiff requests a total EAJA award of $8, 071.35 in attorney's fees (see Doc. 27 at 2), which are based on 40.2 hours of federal court work performed ...


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