Whitfill v. Colvin

Filing 33

MEMORANDUM AND ORDER DENYING 26 Motion for Attorney Fees. Signed by Magistrate Judge Stephanie A Gallagher on 10/3/2017. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

October 3, 2017

LETTER TO COUNSEL

RE:

Sharon A. Whitfill v. Commissioner, Social Security Administration;
Civil No. SAG-16-1996

Dear Counsel:
Plaintiff Sharon A. Whitfill has filed a motion seeking payment of $6,293.13 in
attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”). [ECF No. 26]. In
response, the Commissioner argued that the Court should not order attorney’s fees, since the
Commissioner’s position in the litigation was substantially justified. [ECF No. 29]. I have
considered those filings, and Plaintiff’s reply. [ECF No. 32]. No hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiff’s motion for payment of
attorney’s fees is DENIED.
This case presents with a highly unusual procedural history. On June 9, 2016, Plaintiff
filed a complaint seeking review of the Commissioner’s final decision to deny her Social
Security disability benefits. [ECF No. 1]. The parties filed cross-dispositive motions, in which
Plaintiff presented several arguments but did not contest the adequacy of the Commissioner’s
credibility determination. [ECF No. 17, 20, 21]. On May 26, 2017, following review of the
parties’ submissions, I entered judgment for the Commissioner. [ECF No. 22]. The following
week, on June 2, 2017, the Fourth Circuit issued its decision in Lewis v. Berryhill, 858 F.3d 959
(4th Cir. 2017). Seven days later, on June 9, 2017, Plaintiff filed a motion for reconsideration of
my order of judgment, in part relying on Lewis to challenge the Commissioner’s adverse
credibility finding. [ECF No. 23]. After reviewing that motion and the Commissioner’s
opposition, I granted Plaintiff’s motion for reconsideration and remanded her case to the
Commissioner, on the basis of Lewis. [ECF No. 25].
Under the EAJA, prevailing parties in civil actions brought by or against the United
States are entitled to an award of attorney’s fees and expenses, unless the court finds the position
of the government was substantially justified or that special circumstances make an award unjust.
See 28 U.S.C. § 2412(d)(1)(A); Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). Under
the unique procedural posture of this case, I conclude that the Commissioner’s position was
substantially justified. As the Supreme Court has stated, “a position can be justified even though
it is not correct.” Pierce v. Underwood, 487 U.S. 552, 565-66, n.2 (1988). Applying that
standard, the Fourth Circuit has opined that “the Government will avoid paying fees as long as ‘a

Sharon A. Whitfill v. Commissioner, Social Security Administration;
Civil No. SAG-16-1996
October 3, 2017
Page 2
reasonable person could [have thought]’ that its litigation position was ‘correct.’” Meyer v.
Colvin, 754 F.3d 251, 255 (4th Cir. 2014) (quoting Pierce, 487 U.S. at 566 n.2). The issues
presented in this case, particularly as to the procedural appropriateness of a motion for
reconsideration in these circumstances, were close questions, and reasonable persons could differ
as to the appropriate result. Given that the Commissioner had prevailed in full in my original
judgment, and that the Plaintiff had not challenged the Commissioner’s credibility determination
in her initial briefing, the Commissioner was substantially justified in (1) believing that it had a
viable contention that the credibility argument had been waived, and (2) opposing the
reconsideration of my original opinion following an intervening case which, in the
Commissioner’s view, did not represent a change in controlling law. Although I ultimately
disagreed with the Commissioner’s positions, I concede that reasonable people could differ on
those close questions. Accordingly, an award of fees under the EAJA is inappropriate, and
Plaintiff’s motion for such an award, (ECF No. 26), is DENIED.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge