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Smith v. Berryhill

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

May 6, 2019

CURTIS SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. 28) filed by the Plaintiff, Curtis Smith (hereinafter, “the Plaintiff”), which requests an award of $2, 269.32 in attorney fees from the Defendant Commissioner of Social Security (“the Commissioner”). The Commissioner has filed a response (Doc. 29) to the motion stating that she does not object to an award of fees to the Plaintiff under EAJA in the amount requested. Upon consideration, the Court finds the Plaintiff's motion (Doc. 28) is due to be GRANTED.[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

         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)).

         Here, final judgment was entered on September 21, 2018 (see Doc. 27), 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 expired after Tuesday, November 20, 2018 - 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 Plaintiff filed and served the present motion within 30 days of that date, on November 21, 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 Plaintiff's unchallenged assertion that he “an individual whose net worth did not exceed two million dollars at the time the action” (Doc. 28 at 2), and the sworn representations in the Plaintiff's motion for leave to proceed without prepayment of fees (Doc. 2) filed contemporaneously with the complaint, 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. 22), the Plaintiff 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.

         As required, the Plaintiff has alleged in the present motion that “the position of the United States in this case, either at the agency or in this litigation, was not substantially justified.” (Doc. 28 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 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 $2, 269.32 in attorney fees, which are based on 11.35 hours of federal court work performed by ...


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