Sheridan v. Colvin

Filing 39

ORDER denying 32 Motion/Application for Attorney Fees. See order for details. Signed by Senior Judge Frederick J Martone on 4/12/2016.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tammy Lynn Sheridan,
Plaintiff,

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vs.

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Michael J. Astrue,
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Defendant.
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No. CV-12-277-PHX-FJM
ORDER

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The court has before it plaintiff’s Motion for an award of fees under 28 U.S.C.
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§2412(d)(1)(A) (doc. 32), the defendant’s Response (doc. 34), and plaintiff’s Reply (doc.
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38).
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A prevailing party will be awarded fees under 28 U.S.C. §2412(d)(1)(A) “unless the
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court finds that the position of the United States was substantially justified or that special
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circumstances make an award unjust.”
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Here, we affirmed the decision of the Commissioner denying disability benefits in a
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comprehensive ten page order. Order of Mar. 22, 2013 (doc. 21). We concluded that
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substantial evidence in the record supported the ALJ’s conclusion that plaintiff was not
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disabled. Id. at 10.
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Two members of an appellate panel disagreed and remanded to allow the ALJ to
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provide a sufficient explanation for the denial of benefits. Mem. Dispo. of Nov. 17, 2015 at
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5 (doc. 28). Circuit Judge Bea disagreed with the panel majority and filed a dissent,

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concluding that the ALJ offered clear and convincing evidence for discounting the credibility

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of plaintiff’s self-reports, and that a potential alternative interpretation did not justify

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upsetting the ALJ’s findings. Mem. Dispo. of Nov. 17, 2015 at 5 (Bea, J., dissenting) (doc.

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28).

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There is obviously a good faith disagreement here on the merits. Two Article III

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judges believe there was error. Two Article III judges believe there was no error. We need

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not belabor the details of their disagreement. We do not decide here who is “right” and who

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is “wrong.” The majority of the panel has spoken on the merits. But we do have to decide

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whether the government’s position was substantially justified. I believe any fair reading of

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this court’s Order of Mar. 22, 2013 (doc. 21) and Circuit Judge Bea’s dissent precludes a

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finding that the government’s position was not substantially justified. The government has

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met its burden of showing that its position was indeed substantially justified. To hold

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otherwise on this record would turn 28 U.S.C. §2412(d)(1)(A) into an automatic fee shifting

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statute, which it plainly is not.

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Accordingly, it is ORDERED DENYING plaintiff’s Application for Attorney’s fees.
(Doc. 32).
DATED this 12th day of April, 2016.

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