United States District Court, S.D. Alabama, Northern Division
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. 21) filed by the Plaintiff,
Emanuel Reese (hereinafter, “the Plaintiff”),
which requests an award of $1, 742.20 in attorney fees from
the Defendant Commissioner of Social Security (“the
Commissioner”). Though given the opportunity to do so,
the Commissioner has filed no response to the motion, the
deadline to do so has passed, and the motion is now under
submission. (See Doc. 22). 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 June 28, 2019 (see
Doc. 20), 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, August 27,
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 on July 26,
2019, the motion is timely.
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. 21, PageID.616), and his sworn motion for
leave to proceed without prepayment of fees and costs under
28 U.S.C. § 1915 (Doc. 2), 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. 19), 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.”).
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. 21, PageID.616). 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 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 $1, 742.20 in attorney fees, representing
8.65 hours of federal court work performed by Plaintiff's
counsel at an hourly ...