Patrick v. Saul

          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), and separate supporting memorandum (Doc. 29), filed by the Plaintiff, Clara A. Patrick (hereinafter, “the Plaintiff”), which requests an award of $1, 020.10 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, 020.10 in attorney's fees.” (Doc. 25). 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). “[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).

         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 11, 2019 (see Doc. 27), 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 Tuesday, November 12, 2019 - 60 days from the date of entry of final judgment, excluding the date of entry, and excluding the last 2 days of the 60 day period because they fell on a Sunday and Veterans Day, a federal holiday. 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 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 unchallenged representations in the Plaintiff's present EAJA motion (Doc. 28, PageID.856), and her amended motion for leave to proceed without prepayment of fees and costs under 28 U.S.C. § 1915 (Doc. 4), 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. 26), 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's motion alleges that the Commissioner's position was not substantially justified. (See Doc. 29). 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.

         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, and the Commissioner has agreed to pay, $1, 020.10 in attorney fees, representing 5.1 hours of federal court work performed by Plaintiff's counsel at an ...