Barnes v. Colvin

Filing 22

ORDER granting 19 Motion for Attorney Fees Under the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiff is AWARDED attorney fees of $6,169.45 by Judge Robert E. Blackburn on 06/24/14.(jhawk, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00763-REB
KENNETH D. BARNES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY’S
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412
Blackburn, J.
The matter before me is Plaintiff’s Application for Award of Attorney’s Fees
Under the Equal Access to Justice Act, 28 U.S.C. § 2412 [#19],1 filed May 30, 2014.
I grant the motion.
In this case, plaintiff appealed the Commissioner’s decision denying plaintiff’s
application for supplemental security income benefits. I found that the ALJ committed
legal error in concluding at step 5 of the sequential evaluation, without the benefit of
expert testimony, that limiting plaintiff to low stress jobs with limited decisionmaking
requirements would allow him to perform the jobs identified by the vocational expert, all
of which required a reasoning level of 3 . I therefore reversed the disability
determination and remanded to the Commissioner for further proceedings.

1

“[#19]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

Plaintiff now seeks attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”), which provides, in relevant part:
a court shall award to a prevailing party other than the
United States 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 in any court having jurisdiction of that action, 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).2 As interpreted by the Supreme Court, “substantially
justified” means "’justified in substance or in the main’ – that is, justified to a degree that
could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108
S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). Stated differently, the test is whether there
is a “reasonable basis in both law and fact” for the Commissioner’s position. Id., 108
S.Ct. at 2550; Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir.), cert. denied, 116
S.Ct. 49 (1995). Although the term “‘substantially justified’ means, of course, more than
merely undeserving of sanctions for frivolousness,” Pierce, 108 S.Ct. at 2550, “a
position can be justified even though it is not correct, and we believe it can be
substantially (i.e., for the most part) justified if a reasonable person could think it correct,
that is, if it has a reasonable basis in law and fact,” id. at 2550 n.2. For this reason, a
finding that the Commissioner’s position was not supported by substantial evidence
does not necessarily lead to a finding that the Commissioner’s position was not
substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1268-69 (10th Cir. 1988).

2

The parties apparently stipulate that plaintiff is a prevailing party for purposes of the EAJA. See
Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993) (party who
secures remand to Commissioner under sentence four of 42 U.S.C. § 405(g) is a prevailing party).

2

The Commissioner bears the burden of demonstrating that her position was
substantially justified. Gilbert, 45 F.3d at 1394. I have discretion in determining
whether this standard has been met. Pierce, 108 S.Ct. at 2548-49; Stephenson v.
Shalala, 846 F.Supp. 49, 50 (D. Kan. 1994). In exercising that discretion, I must
consider the case “as an inclusive whole, rather than as atomized line items.”
Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 162,
110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990). “Being incorrect on one point does not
translate into lacking substantial justification for one’s litigation position during the
entirety of a civil action.” Jackson v. Chater, 94 F.3d 274, 279-80 (7th Cir. 1996).
Although the Commissioner sets forth these legal precepts in her brief, she
nevertheless fails to carry her burden to demonstrate that her position “during the
entirety of the civil action” was substantially justified. Rather, she attempts to justify her
position – a position contrary to the established law of this circuit – by citing the court to
the unpublished recommendation of a magistrate judge, a decision which not only was
not cited or discussed in her original briefing, but which also was rejected by the district
court to which it was directed. See Summers v. Astrue, 2011 WL 2935879 (N.D. Okla.
June 14, 2011), rejected 2011 WL 2971811 (N.D. Okla. July 21, 2011).3 A position
which lacks a reasonable basis in law cannot be substantially justified. See Pierce, 108
S.Ct. at 2550 n.2. Such is the case here. The Commissioner therefore has failed to
meet her burden of proof on the issue of substantial justification. Accordingly, plaintiff is
entitled to an award of attorney fees.
3

The Commissioner’s failure to acknowledge that this opinion had been rejected is as baffling as
it is inexcusable.

3

Plaintiff requests attorney fees in the amount of $6,169.45 representing 26.8
hours of attorney time and 23.5 hours of paralegal time devoted to this litigation.4 The
Commissioner presents no argument that the total amount of time expended or the total
amount of fees requested are unreasonable. Moreover, my own experience suggests
that the hours expended are reasonable and the fees requested comparable to awards
made under the EAJA in similar cases. I therefore find and conclude that plaintiff is
entitled to the entirety of his requested fees.
THEREFORE, IT IS ORDERED as follows:
1. That Plaintiff’s Application for Award of Attorney’s Fees Under the Equal
Access to Justice Act, 28 U.S.C. § 2412 [#19], filed May 30, 2014, is GRANTED; and
2. That under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) plaintiff
is AWARDED attorney fees of $6,169.45.
Dated June 24, 2014, at Denver, Colorado.
BY THE COURT:

4

Plaintiff’s request includes a request for an increase in the statutory rate to $186.36 per hour as
a cost-of-living adjustment. “Except in unusual circumstances, a COLA should be freely given to plaintiffs
applying for attorneys' fees under EAJA.” Greenhill v. United States,. 96 Fed. Cl. 771, 783 (Fed. Cl.
2001). See also Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988); see also Payne v. Sullivan, 977
F.2d 900, 903 & n.2 (4th Cir. 1992). The Commissioner has stipulated that $186.36 is the current hourly
rate applicable to motions seeking attorney fees under the EAJA. (See Motion at 5 n.3 [#19], filed May
30, 2014.)

4