Holbrook v. SSA
Filing
27
MEMORANDUM OPINION & ORDER: Plas motion for attorney's fees pursuant to the Equal Access to Justice Act 19 is DENIED. Signed by Judge Joseph M. Hood on 10/19/2016. (TDA) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
CURTIS TYLER HOLBROOK,
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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
Civil Case No.
7:13-cv-114-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the court on Plaintiff’s Motion for
Attorney’s Fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (1996) (“EAJA”).
[DE 19].
Defendant has responded [DE
25], and Plaintiff has replied [DE 26].
This matter is now ripe
for decision.
Plaintiff filed an application seeking in $166.56 costs and
$13,665.00 in attorney’s fees for 91.1 hours of work at the rate
of $150.00 per hour.
[DE 19].
Defendant objects to the award of
costs and fees, arguing that the Commissioner’s position was
substantially justified.
Defendant further argues both the hourly
rate and the number of hours expended appears excessive. Defendant
requests the Court deny Plaintiff’s motion, or, in the alternative,
reduce the award to the statutory rate of $125.00 per hour and
reduce the amount of hours allowed.
28 U.S.C. § 2412(d)(2)(A).
The EAJA instructs the Court to
award to a prevailing party other than the
United States fees and other expenses, in
addition to any costs awarded pursuant to
subsection (a), 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 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.A. § 2412 (emphasis added).
The Supreme Court of the
United States is
of the view, therefore, that as between the
two commonly used connotations of the word
“substantially,” the one most naturally
conveyed by the phrase before us here is not
“justified to a high degree,” but rather
“justified in substance or in the main”—that
is, justified to a degree that could satisfy
a reasonable person. That is no different from
the “reasonable basis both in law and fact”
formulation adopted by the Ninth Circuit and
the vast majority of other Courts of Appeals
that have addressed this issue.
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Based on the information the defendant had at the time she
undertook the defense of this case, including filing the motion to
dismiss, her actions were substantially justified, or as the
Supreme Court said, “justified to a degree that could satisfy a
reasonable person.”
be
dismissed
Id.
because
The Commissioner argued the case should
Plaintiff
failed
to
exhaust
his
administrative remedies and failed to show good cause for why he
missed the administrative appeals deadline.
Plaintiff did not
assert in his Complaint or in response to the motion to dismiss
that he had new evidence and/or could show good cause for failing
to file timely his request for a hearing with the administrative
law judge.
dismiss.
In fact, Plaintiff did not respond to the motion to
Although the Court ultimately remanded the case for a
decision on whether Plaintiff had good cause for his untimely
filing, the Court agrees with Defendant that she was substantially
justified in fact and law in filing the motion to dismiss and
opposing Plaintiff’s Rule 59 motion pursuant to Sixth Circuit case
law.
See Hilmes v. Sec’y of Health and Human Servs., 983 F.2d 67,
70 (6th Cir. 1993).
Similar to the case at bar, the plaintiff in
Hilmes failed to present a sufficient argument to the Appeals
Council as to why he had good cause for his untimely filing,
instead offering the conclusory statement that he had good cause.
Hilmes at 70.
Because of this failure, the Sixth Circuit refused
to consider the timeliness issue (which Plaintiff raised later
with a detailed justification) as a constitutional one.
Based on
this case law, and the Commissioner was substantially justified in
defending this case on similar grounds, regardless of the fact
that the plaintiff ultimately prevailed on the merits of his claim.
Accordingly, for the foregoing reasons and the Court being
otherwise sufficiently advised, Plaintiff’s motion for attorney’s
fees pursuant to the Equal Access to Justice Act is DENIED.
This the 19th day of October, 2016.
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