United States District Court, S.D. Alabama, Southern Division
MARLON J. McGASTER, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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. 22), and separate supporting
memorandum (Doc. 23), filed by the Plaintiff, Marlon J.
McGaster (hereinafter, “the Plaintiff”), which
requests an award of $1, 600.16 in attorney fees from the
Defendant Commissioner of Social Security (“the
Commissioner”). The Commissioner has filed a response
indicating that he does not oppose said motion and
“agrees to pay Plaintiff $1, 600.16 in attorney's
fees.” (Doc. 25). Upon consideration, the Court finds
the Plaintiff's motion (Doc. 22) is due to be
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). “[E]ligibility 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).
“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)).
final judgment was entered on September 19, 2019
(see Doc. 21), and no appeal was taken. Because a
United States officer sued in an official capacity is a party
to this action, the time to appeal expired after Monday,
November 18, 2019 - 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). Because
the Plaintiff filed and served the present motion within 30
days of that date, on November 25, 2019, the motion is
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
unchallenged representations in the Plaintiff's present
EAJA motion (Doc. 22, PageID.397), and his motion for leave
to proceed without prepayment of fees and costs under 28
U.S.C. § 1915 (Doc. 2), 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. 20), 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
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). 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.
required, the Plaintiff's motion alleges that the
Commissioner's position was not substantially justified.
(See Doc. 22, PageID.397; Doc. 23). The Commissioner
has not attempted to rebut that allegation and has concede
that the Plaintiff is due to be awarded fees under EAJA.
Moreover, 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 Fees
“fees and other expenses” that a prevailing party
is entitled to receive under § 2412(d)(1)(A)
fees…” 28 U.S.C. § 2412(d)(2)(A). The
Plaintiff requests, and the Commissioner has agreed to pay,
$1, 600.16 in attorney fees, representing 8 hours of federal
court work performed by Plaintiff's counsel at an ...