Rogers v. SSA
Filing
39
MEMORANDUM OPINION & ORDER: Plaintiffs' motions for attorney's fees are DENIED. 31 Defendant's motions to lift the stay and deny EAJA fees are GRANTED. 36 . Signed by Judge William O. Bertelsman on 3/8/2022. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
CASE NO. 7:16-cv-46 (WOB-CJS)
WILLIAM S. HENSLEY
PLAINTIFF
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
CASE NO. 7:16-cv-58 (WOB-CJS)
DEBORAH ANN HENDERSON
PLAINTIFF
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
CASE NO. 7:16-cv-65 (WOB-CJS)
WILLIS OUSLEY
PLAINTIFF
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
CASE NO. 7:16-cv-197 (WOB-CJS)
CHARLENE CRASE
PLAINTIFF
1
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
CASE NO. 6:16-cv-274 (WOB-CJS)
PERRY COMBS
PLAINTIFF
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
CASE NO. 7:17-cv-53 (WOB-CJS)
MARION LEE ROGERS
PLAINTIFF
VS.
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ motions for
attorney’s fees 1 and Defendant’s motions to lift the stay in the
above-captioned cases and deny fees under the Equal Access to
Justice Act. 2
After careful consideration, and the Court being
(No. 7:16-46, Doc. 46; No. 7:16-58, Doc. 37; No. 7:16-65, Doc. 41; No.
7:16-197, Doc. 39; No. 6:16-274, Doc. 34; No. 7:17-53, Doc. 31).
1
(No. 7:16-46, Doc. 53; No. 7:16-58, Doc. 43; No. 7:16-65, Doc. 46; No.
7:16-197, Doc. 45; No. 6:16-274, Doc. 39; No. 7:17-53, Doc. 36).
2
2
advised, the Court issues the following Memorandum Opinion and
Order.
FACTUAL AND PROCEDURAL BACKGROUND 3
From 2004 through 2011, former attorney Eric Conn represented
claimants in their efforts to obtain social security benefits.
(No. 7:16-cv-197, Doc. 40 at 4 n.1 (citing Plea Agreement, United
States v. Conn, No. 5:17-cr-43 (E.D. Ky. Mar. 24, 2017))). During
this time, he bribed four doctors to furnish medical reports that
were
favorable
to
his
clients,
regardless
of
their
actual
conditions. Id. Conn also bribed a local administrative law judge
to assign himself Conn’s cases and issue favorable rulings. Id.
After Conn’s scheme was uncovered in 2014, the Social Security
Administration
(“SSA”)
determined
that
the
agency
needed
to
redetermine eligibility for more than 1,700 claimants who may have
been improperly awarded benefits because of the fraud.
Id. at 4.
During the redetermination process, the SSA allowed the claimants
to
submit
additional
evidence
relating
to
their
eligibility.
However, the SSA categorically excluded any reports or other
evidence from the four physicians involved in the fraud. Id. at 5.
The SSA argued that it was possible reports from those physicians
were fraudulent and it did not allow the claimants to rebut this
These facts apply to all six of the above-captioned cases. (No. 7:16cv-46, Doc. 48 at 4–5; No. 7:16-cv-58, Doc. 39 at 4–5; No. 7:16-cv-65,
Doc. 42 at 4–5; No. 6:16-cv-274, Doc. 35 at 4–5; No. 7:17-cv-53, Doc.
32 at 4–5).
3
3
finding.
During Plaintiffs’ redetermination hearings, the
Id.
SSA found there was insufficient evidence to support a finding of
disability.
Many
Id.
claimants
who
were
denied
benefits,
including
Plaintiffs, filed suit here in the Eastern District of Kentucky,
with the cases being randomly assigned to different judges.
In
2016, then-District Judge Amul R. Thapar issued an opinion finding
that the SSA’s categorical exclusion of potentially fraudulent
medical reports violated the due process clause of the Fifth
Amendment.
Hicks v. Colvin, 214 F. Supp. 3d 627 (E.D. Ky. 2016)
(Thapar, J.).
Hood
shortly
Chief Judge Danny C. Reeves and Judge Joseph M.
thereafter
held
that
the
SSA’s
redetermination
process did not violate due process, the Social Security Act, or
the Administrative Procedure Act (“APA”).
Carter v. Colvin, 220
F. Supp. 3d 789 (E.D. Ky. 2016) (Reeves, C.J.); Perkins v. Colvin,
224 F. Supp. 3d 575 (E.D. Ky. 2016) (Hood, J.).
Due to the conflicting opinions, the Sixth Circuit agreed to
consolidate multiple cases stemming from the SSA’s redetermination
process
and
granted
an
interlocutory
appeal. 4
The
appeal
The cases that were consolidated were: Hicks v. Berryhill, No. 175206; Blackburn v. Berryhill, No. 17-5211; Ousley v. Berryhill; No. 175212; Justice v. Berryhill, No. 17-5213; Jenkins v. Berryhill, No. 175214; Adams v. Berryhill, No. 17-5215; Hale v. Berryhill, No. 17-5216;
Perkins v. Colvin, No. 17-5598; Howard v. Colvin, Griffith v. Colvin,
and Martin v. Colvin, No. 17-5614.
4
4
effectively stayed all similarly situated cases in the district.
(See, e.g., No. 7:16-cv-46, Doc. 29, Order Granting Stay).
On appeal, two of the three judges on the panel held that the
SSA’s redetermination process violated the plaintiffs’ due process
rights because it did not give the plaintiffs’ the opportunity to
rebut the potential fraudulent medical reports.
Hicks v. Comm’r
of Soc. Sec., 909 F.3d 786, 796–804 (6th Cir. 2018).
The panel
also held that the redetermination process violated the APA’s
formal adjudication requirements and was arbitrary and capricious.
Id. at 804–09.
Judge John M. Rogers wrote a thoughtful dissent,
holding that the redetermination process did not violate due
process
or
the
Administrative
Procedure
Act.
Id.
at
813–27
(Rogers, J., dissenting).
The Sixth Circuit remanded the cases to the various district
courts to then remand to the SSA.
At the district court level,
the SSA argued for remand under sentence six, which is proper when
the court “remands because new evidence has come to light that was
not available to the claimant at the time of the administrative
proceeding.”
the
district
Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
courts
ultimately
remanded
to
the
SSA
But
for
redetermination under sentence four of 42 U.S.C. § 405(g), which
is appropriate when “the Secretary has failed to provide a full
and fair hearing, to make explicit findings, or to have correctly
appl[ied] the law and regulations.”
5
Id. at 101.
Following remand
to the SSA, many plaintiffs, including those in the above-captioned
cases, moved for attorney’s fees under the Equal Access to Justice
Act. (See, e.g., 7:17-cv-53, Doc. 31).
In 2019, Chief Judge Reeves, Judge Hood, and Judge David L.
Bunning denied the motions for attorney’s fees, finding that the
government’s position was “substantially justified.”
See, e.g.,
Howard v. Saul, 7:16-cv-00051, 2019 WL 5191831 (E.D. Ky. Oct. 15,
2019) (Reeves, J.); Mullins v. Comm’r of Soc. Sec., 5:16-cv-00130
(E.D. Ky. Nov. 18, 2019) (Bunning, J.); Russelburg v. Saul, 5:16cv-00128 (E.D. Ky. Jan. 9, 2020) (Hood, J.). The plaintiffs in
those cases appealed to the Sixth Circuit, which again stayed the
above-captioned cases pending resolution of those cases.
e.g., No. 7:16-cv-46, Doc. 52, Order Granting Stay).
(See,
In 2021, the
Sixth Circuit upheld the denial of attorney’s fees, holding that
it was not an abuse of discretion for the district courts to find
that the SSA’s position was “substantially justified.”
Griffith
v. Comm’r of Soc. Sec., 987 F.3d 556 (2021).
Following the decision, the SSA filed motions in the currently
pending cases seeking to lift the stay and deny attorney’s fees.
These motions are currently ripe for decision.
ANALYSIS
Plaintiffs seek attorney’s fees under the Equal Access to
Justice Act (“EAJA”). The EAJA, in relevant part, states:
6
Except as otherwise specifically provided by statute, 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 (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. § 2412(d)(1)(A).
For purposes of an EAJA analysis, the Court must take a “fresh
look at the case from an EAJA perspective and reach a judgment on
fees and expenses independent from the ultimate merits decision.”
Hayden v. Saul, No. 7:16-cv-178, 2019 WL 5677513, at *4 (E.D. Ky.
Oct. 31, 2019) (internal quotations omitted).
The Court must
therefore consider the following factors: whether the plaintiffs
prevailed; whether the government’s position was substantially
justified; and whether any special circumstances exist that make
an award unjust.
Id. (citing I.N.S. v. Jean, 496 U.S. 154, 158
(1990)).
The parties here do not dispute that Plaintiffs are prevailing
parties under the EAJA.
See Turner v. Comm’r of Soc. Sec., 680
F.3d 721, 723 (6th Cir. 2012) (explaining that a plaintiff who is
granted a remand under sentence four of 42 U.S.C. § 405(g) is
deemed a prevailing party under the EAJA).
They also do not argue
that there are circumstances that would make an award unjust.
See
United States ex rel. Wall v. Circle C Constr., LLC, 868 F.3d 466,
7
472 (6th Cir. 2017).
The primary question is whether the SSA’s
position in the case was “substantially justified.” The government
bears the burden of proof on this element.
DeLong v. Comm’r of
Soc. Sec., 748 F.3d 723, 726–27 (6th Cir. 2014).
The
Supreme
Court
has
explained
that
a
position
is
“substantially justified” when the position is “justified to a
degree
that
could
satisfy
a
reasonable
Underwood, 487 U.S. 552, 565 (1988).
person.”
Pierce
v.
A party’s position may still
be justified “even though it is not correct” or ultimately rejected
by a court.
Id. at 566 n.2.
The Court must focus on “the actual
merits of the government’s litigating position.”
Id. at 569.
But
the Court may also consider other factors such as dissenting
opinions,
successes.
views
of
other
courts,
and
strings
of
losses
or
Wall, 868 F.3d at 471.
When reviewing the position of the government, it is relevant
whether the government lost because its argument contradicted
clearly controlling case law or because there was an unsettled
question that was resolved unfavorably.
Perket v. Sec’y of Health
& Hum. Servs., 905 F.2d 129, 135 (6th Cir. 1990).
The Court should
examine the government’s position “as a whole,” including all prelitigation arguments.
(6th
Cir.
2016).
Amezola-Garcia v. Lynch, 835 F.3d 553, 555
But
the
Court
should
avoid
being
“subtly
influenced by the familiar shortcomings of hindsight judgment.”
Beck v. Ohio, 379 U.S. 89, 96 (1964).
8
In
Griffith,
the
Sixth
Circuit
extensively
reviewed
the
justifiability of the SSA’s position in the Eric Conn cases and
found that its position was “substantially justified” to warrant
the denial of fees.
987 F.3d 556 (2021).
The Sixth Circuit
reasoned that there was a lack of controlling case law as to what
process the SSA owed the plaintiffs.
The panel also noted that
Judge Rogers’s “well-reasoned dissent” illustrated the objective
indicia of reasonableness of the government’s position in its
defense of the redetermination process.
Id. at 571.
Further, the
Eric Conn cases have presented multiple issues of first impression
which
provided
the
government
arguments.” Id. at 572.
“more
leeway
to
construct
its
Therefore, the Sixth Circuit found that
the SSA’s position was substantially justified and the district
courts’ denial of EAJA fees was not an abuse of discretion.
Plaintiffs’ attorneys in the present cases argue that because
Griffith was a review for abuse of discretion, this Court is not
bound by that decision and should find that the government’s
position was not substantially justified and award EAJA fees.
(See, e.g., 7:16-cv-58, Doc. 44 at 1–4).
They point to numerous
other cases involving Eric Conn’s former clients in other circuits
in which the courts awarded EAJA fees.
See Kirk v. Comm’r of Soc.
Sec., 987 F.3d 314, 321 (4th Cir. 2021)(“It is not only arbitrary
and
capricious,
distinguish
but
between
also
fundamentally
similarly
situated
9
unfair,
for
claimants
SSA
to
based
on
circumstances entirely outside of their control.”); Bryant v.
Saul, No. 1:17-cv-220, 2020 WL 7137874, at *5 (N.D. Ill. Dec. 7,
2020)
(arguing
that
a
finding
that
the
SSA’s
procedure
was
substantially justified “borders on the unconscionable”).
After careful consideration of the Sixth Circuit’s analysis
in Griffith, this Court finds that the government’s position in
defense
of
its
redetermination
process
was
substantially
justified. District judges within the Eastern District of Kentucky
reached
differing
conclusions
about
the
sufficiency
of
the
redetermination process, and on appeal, Judge Rogers wrote a
thoughtful dissent arguing that the government’s position did not
violate due process or the APA.
(Rogers, J., dissenting).
See Hicks, 909 F.3d at 813–27
This shows that reasonable minds could
differ on whether the redetermination process violated due process
and the APA.
Therefore, an award of EAJA fees is not warranted.
Regarding the due process issue specifically, the three-part
due process analysis under Mathews is flexible, and the conclusion
that due process was not met by the SSA’s redetermination procedure
was open to reasonable disagreement.
As Judge Bunning noted when
he found the government’s position justifiable, “both parties had
strong interests at stake.”
In re Fee Motions in Various Soc.
Sec. Cases Affected by the Sixth Circuit Decision in Hicks v.
Comm’r of Soc. Sec., No. 17-5206, 2019 WL 6119220, at *4 (E.D. Ky.
Nov. 18, 2019) (internal citations omitted).
10
Plaintiffs, of
course, had an interest in maintaining their benefits, whereas the
government had an interest in preventing fraud and conserving
resources. Id.
Additionally, the government explained that the
risk of erroneous deprivation was low because the plaintiffs were
permitted to submit additional evidence to the SSA during the
redetermination process. Id. Allowing the plaintiffs to challenge
the
exclusion
of
potentially
fraudulent
provided little benefit to them.
Id.
records
would
have
Thus, the government’s
position that it did not violate due process was substantially
justified.
Turning to the APA issue, the Court finds the SSA’s position
was also substantially justified.
To echo Chief Judge Reeves’s
reasoning, it was reasonable for the SSA to believe that the
redetermination process was not subject to formal adjudication
requirements.
Howard v. Saul, 7:16-cv-00051, 2019 WL 5191831, at
*6 (E.D. Ky. Oct. 15, 2019).
apply
to
agency
hearings,
Formal adjudication requirements
and
“the
SSA
acted
reasonably
in
concluding that it was not required to conduct hearings pursuant
to
§
405(b)(1),
since
that
provision
individual applying for a payment.’”
11
deals
with
‘any
Id. (emphasis in original).
Accordingly, the government’s position that the redetermination
process did not violate the APA was also substantially justified. 5
This Court therefore joins the other judges in the Eastern
District of Kentucky in finding that the award of attorney’s fees
under the EAJA is not warranted. The Court adopts and incorporates
by reference the full reasoning of the Sixth Circuit’s opinion in
Griffith v. Comm’r of Soc. Sec., 987 F.3d 556 (6th Cir. 2021), and
finds that
the
government’s
redetermination
process,
although
ultimately rejected, was substantially justified.
Thus, Plaintiffs’ motions for attorney’s fees are DENIED.
(No. 7:16-46, Doc. 46; No. 7:16-58, Doc. 37; No. 7:16-65, Doc. 41;
No. 7:16-197, Doc. 39; No. 6:16-274, Doc. 34; No. 7:17-53, Doc.
31).
Defendant’s motions to lift the stay and deny EAJA fees are
GRANTED. (No. 7:16-46, Doc. 53; No. 7:16-58, Doc. 43; No. 7:1665, Doc. 46; No. 7:16-197, Doc. 45; No. 6:16-274, Doc. 39; No.
7:17-53, Doc. 36).
This 8th day of March 2022.
Although the Court acknowledges that the government’s arguments for
remand under sentence six and not sentence four were unreasonable, the
government’s position, taken as a whole, is still substantially
justified. Griffith, 987 F.3d at 570–72.
5
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