Thomas v. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER DENYING 26 Motion for Attorney Fees (EAJA). Plaintiff's Attorney has not satisfied the three EAJA statutory requirements necessary to receive Attorney's fees, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 4/20/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT D. THOMAS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 15-0214-M

MEMORANDUM OPINION AND ORDER
Pending before the Court is Thomas’s Attorney’s Application
for Attorney Fees Under the Equal Access to Justice Act
(hereinafter EAJA), with supporting Documentation (Doc. 26), and
Defendant’s Response (Doc. 27).

After considering the pertinent

pleadings, it is ORDERED that the Application be DENIED.
Plaintiff filed this action on April 20, 2015 (Doc. 1).

On

February 17, 2016, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner
and remanding this action for further proceedings (Doc. 24).
Judgment was entered in favor of Plaintiff and against Defendant
(Doc. 25).
On March 18, 2016, William T. Coplin, Jr., Plaintiff’s
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Attorney, filed an EAJA Fee Application requesting a fee of
$1,999.41, computed at an hourly rate of $189.40 for 10.15 hours
spent in this Court (Doc. 26).

Defendant, in her Response filed

on April 1, 2016, stated her objection to the Motion, arguing
that the Government’s litigation position on the issues raised
in this Court was substantially justified (Doc. 27).
The EAJA requires a court to
award to a prevailing party . . . fees and
other expenses . . . incurred by that party
in any civil action . . . 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.
28 U.S.C. § 2412(d)(1)(A).

EAJA requires a prevailing party to

file an application for attorney’s fees within thirty days of
final judgment in the action.

28 U.S.C. § 2412(d)(1)(B).

The

court’s judgment becomes final sixty days—the time an appeal may
be taken pursuant to Fed.R.App.P. Rule 4(a)—after it is entered.
See Shalala v. Schaefer, 509 U.S. 292 (1993).
Three statutory conditions must be satisfied before EAJA
fees may be awarded.
(11th Cir. 1990).

See Myers v. Sullivan, 916 F.2d 659, 666

First, the claimant must file a fee
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application within the thirty-day period following the entry of
final judgment.
party.

Second, the claimant must be a prevailing

Third, the Government’s position must not be

substantially justified.
With regard to this last condition, the Government must
fail “to establish that its positions were ‘substantially
justified’ or that there exist ‘special circumstances’ which
countenance against the awarding of fees.”

Myers, 916 F.2d at

666 (interpreting and referring to 28 U.S.C. § 2412(d)(1)(A)).
That means that the Government must show that there was a
“reasonable basis both in law and fact” for the positions it
took.

Myers, 916 F.2d at 666 (citations omitted).

The Court

notes that “[a]n examination of whether the government’s
position was substantially justified encompasses an evaluation
of both the agency’s preligitation conduct and the subsequent
litigation positions of the Justice Department. . . . Unless the
government can establish that all of its positions were
substantially justified, the claimant is entitled to receive
attorney’s fees.”
omitted).

Myers, 916 F.2d at 666 n.5 (citations

Though Defendant bears the burden of showing that its

position was substantially justified, “[t]he fact that the
government lost its case does not raise a presumption that the
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government’s position was not substantially justified.”

Ashburn

v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
Defendant, in her response, apparently concedes that Thomas
has satisfied the first two requirements of the analysis for
awarding an EAJA fee by posing no objections (Doc. 27). The
Government does argue, however, that there was a reasonable
basis in law and fact for the Commissioner’s position and, on
that basis, that the application should be denied.
In the Memorandum Opinion and Order, dated February 17,
2016, in which the Court reversed and remanded this action for
further administrative review, the Court found as follows:
The Appeals Council is not required “to
give a detailed rationale for why each piece
of new evidence submitted to it does not
change the ALJ’s decision.” Mitchell v.
Commissioner of Social Security
Administration, 771 F.3d 780, 784 (11th Cir.
2014). However, the Council is required “to
apply the correct legal standards in
performing its duties.” Id.
The Court finds that there is nothing
in the Appeals Council’s denial to indicate
that it properly considered whether the
newly-submitted evidence met the
requirements of Listing 12.05C. As the
Council has not provided reasoning
sufficient for this Court to determine that
it conducted proper legal analysis under
Mitchell, the Appeals Council decision must
be reversed. Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991) (“The
Secretary’s failure to apply the correct law
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or to provide the reviewing court with
sufficient reasoning for determining that
the proper legal analysis has been conducted
mandates reversal”).
(Doc. 24.p. 18).
Defendant has strenuously objected to this language,
arguing that the Court conflated “two kinds of procedurally
distinct cases:

cases in which the Appeals Council denies

review, on one hand, and cases where the Appeals Council grants
review and issues a decision, on the other” (Tr. 27, p. 3).

The

Government goes on to point out that, in this action, the
Appeals Council denied review, so it was unnecessary for it to
explain its reasoning (Tr. 27, p. 4).

The Court acknowledges

that Mitchell fully supports that argument.
However, the language used by the Court, quoted above, came
from an unpublished Eleventh Circuit opinion, Hethcox v.
Commission of Social Security, No. 15-11638 (11th Cir. December
16, 2015).

Hethcox was an action filed in this Court, brought

by a claimant1 challenging the administrative decision to deny
disability benefits; one of the claims raised in that action was
that the Appeals Council had failed to properly considered new

1

The Court notes that the attorney representing Hethcox,
coincidentally, was William T. Coplin, Jr., the same attorney seeking
EAJA fees in this Motion.

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evidence, including educational records and an IQ test on which
the claimant had a Full Scale IQ score of 67.
Colvin, 14-0274-M (S.D. Ala. February 9, 2015).
found no merit in Plaintiff’s claim.

Hethcox v.
The undersigned

However, the Eleventh

Circuit Court of Appeals determined that the Appeals Council had
not properly considered the new evidence and reversed this
Court’s decision.

Hethcox v. Commission of Social Security, No.

15-11638 (11th Cir. December 16, 2015).
In this action, Thomas, the Court found the facts regarding
the claim that the Appeals Council had not properly considered
newly-submitted evidence quite similar to the facts of Hethcox.
In both actions, the Appeals Council had denied review of the
evidence that included IQ scores indicating the possibility of a
finding of disability under Listing 12.05C.

Though the Court

found no merit in the claim in Hethcox, the Appellate Court’s
reversal focused this Court’s attention to the proper analysis
for such a claim.2

In this action, the Court relied on—and

applied—the Eleventh Circuit Hethcox analysis, finding for
Taylor.

2

The undersigned acknowledges that this Court did not use the
appropriate analysis in Hethcox in that it included a “good cause”
component, a requirement that comes under consideration when the new
evidence is first submitted to the Court, as opposed to the Appeals
Council.

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The Court provides this history lesson as an acknowledgment
of—and agreement with–the Government’s assertion that it was
substantially justified in arguing its position with regard to
the claim raised by Thomas.

Though it found for Plaintiff, and

against the Government, the Court finds that there was a
reasonable basis for the Defendant to have pursued its defense
of the claim.

As such, the Court finds that the Government’s

legal arguments in this action were substantially justified.
Therefore, Plaintiff’s Attorney has not satisfied the three EAJA
statutory requirements necessary to receive Attorney’s fees.
In conclusion, it is ORDERED that Plaintiff’s Application
for Attorney Fees Under EAJA be DENIED (Doc. 26).
DONE this 20th day of April, 2016.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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