Stewart v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the foregoing reasons, Plaintiff's Motion for Attorney's Fees and Expenses - (Dkt. No. 66) - Is DENIED. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
) Civil Action No. 3:13-cv-30092-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR ATTORNEY'S
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
(Dkt. No. 66)
Now before the court is a motion by Plaintiff Sherri Stewart ("Plaintiff") pursuant to the
Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for an award of attorney's fees and
expenses incurred to obtain retroactive Social Security Disability Insurance ("SSDI") benefits.
Plaintiff seeks attorney's fees in the amount of $33,808.34 for work performed from September
25, 2012 through July 21, 2017. The Acting Commissioner of the Social Security
Administration ("Commissioner") opposes the Plaintiff's request. The parties have assented to
the court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons,
the court DENIES Plaintiff's motion for attorney's fees and expenses.
The protracted history of this case, as set out in Stewart v. Berryhill, Civil Action No.
3:13-cv-30092-KAR, 2017 WL 2435281 (D. Mass. June 5, 2017), is as follows:
On April 10, 2009, Plaintiff applied for SSDI (Dkt. No. 1-3 at 6). She was found not
disabled on June 2, 2009 (Dkt. No. 47-7 at 4). However, on November 11, 2010, upon
reconsideration, she was determined to have been disabled as of December 2008 and was
awarded retroactive benefits from December 2008 to October 2010 (Dkt. No. 1-3 at 6;
Dkt. No. 47-7 at 4). On February 18, 2011 and March 23, 2011, the Social Security
Administration ("SSA") billed Plaintiff for its alleged overpayment of her retroactive
SSDI benefits due to offsets by workers' compensation benefits that she received (Dkt.
No. 1-3 at 6). 1 Plaintiff disagreed with the SSA's calculation of the amount of the offset,
claimed that she was owed additional retroactive SSDI benefits, and requested a hearing
before an Administrative Law Judge ("ALJ") after the SSA denied her request for
reconsideration (Dkt. No. 1-3 at 6). On September 7, 2012, Plaintiff and the SSA's
Office of Dispute Resolution ("ODAR") agreed on a settlement amount, which they
recommended to the ALJ (Dkt. No. 47-7 at 5). On September 25, 2012, accounting for
the workers' compensation offset, the ALJ awarded the following retroactive benefits to
which Plaintiff and ODAR had agreed: $11,520 to Plaintiff; $6,298 to her daughter; and
$4,020 to her son (Dkt. No. 1-3 at 7-8; Dkt. No. 47-7 at 5).
Because the Commissioner did not pay the retroactive SSDI benefits the ALJ
awarded, on May 3, 2013, Plaintiff sought mandamus relief in this court (Dkt. No. 1; Dkt.
No. 1-3 at 8). In August 2013, a claims authorizer in the Centralized ALJ Group of the
Processing Center of the SSA's Office of Centralized Operations reviewed Plaintiff's file
in response to her writ of mandamus and determined that the ALJ miscalculated
Plaintiff's workers' compensation offset for December 2008 through July 2010 and, thus,
the ALJ's decision was erroneous (Dkt. No. 14-1 ¶¶ 3, 5, 6, 7). The claims authorizer
referred the case to the Appeals Council by submitting a "protest memorandum" (Dkt.
No. 14-1 at ¶ 9). On January 24, 2014, the Appeals Council notified Plaintiff that it had
vacated the ALJ's decision and remanded the case to the ALJ for further proceedings,
including a new hearing (Dkt. No. 34-3; Dkt. No. 41 at 1). On December 12, 2013,
Plaintiff asked this court to issue a temporary restraining order and/or preliminary
injunction to prevent the hearing on the ground that the Appeals Council did not have
jurisdiction to remand the case to the ALJ (Dkt. No. 23). The Commissioner agreed to
stay the ALJ's hearing pending the court's decision on Plaintiff's motion (Dkt. No. 40).
On December 30, 2014, Magistrate Judge Kenneth P. Neiman denied Plaintiff's motion
for a writ of mandamus based on [a lack of subject matter jurisdiction under 28 U.S.C. §
1331 and] Plaintiff's failure to exhaust the administrative avenues of relief made available
when the Appeals Council reopened the case and remanded it to the ALJ (Dkt. No. 41).
[Magistrate] Judge Neiman further denied Plaintiff's motion for a temporary restraining
order and/or preliminary injunction, closed the case, and remanded it to the ALJ for
"[S]ection 224(a) of the [Social Security] Act, 42 U.S.C. § 424a(a), provides for an offset of
workers' compensation benefits against SSDI benefits, i.e., SSDI benefits are to be reduced for
any month (prior to the month in which the individual attains the age of 65) in which the
individual is entitled to both SSDI and periodic workers' compensation benefits so that the
benefit total from the two sources does not exceed eighty percent of his pre-disability earnings."
Avery v. Astrue, 602 F. Supp. 2d 266, 268 (D. Mass. 2009).
hearing (id.). See Stewart v. Colvin, Civil Action No. 13-30092-KPN, 2014 WL
7405753, at *1-2 (D. Mass. Dec. 30, 2014), remanded, No. 15-1162 (1st Cir. Jan. 13,
2016). Plaintiff appealed [Magistrate] Judge Neiman's ruling (Dkt. Nos. 42, 45, 46). On
January 13, 2016, the First Circuit affirmed [Magistrate] Judge Neiman's decision,
concluding that "exhaustion of administrative remedies is required" (Dkt. No. 45).
The ALJ who presided over the first hearing in September 2012 also presided
over the second hearing and issued her decision on September 30, 2016 (Dkt. No. 47-7).
The ALJ addressed whether: (1) there was an overpayment or underpayment of
Plaintiff's and her children's retroactive SSDI benefits considering the workers'
compensation offset; (2) there was an error in the settlement terms that were incorporated
into her September 25, 2012 decision; and (3) the SSA's protest was timely (Dkt. No. 477 at 6). The ALJ determined that Plaintiff was entitled to recover the settlement amount
that was included in her September 25, 2012 decision (Dkt. No. 47-7 at 6-12).
Consequently, the ALJ found that Plaintiff and her children had been underpaid and
awarded the following: $11,520 to Plaintiff; $6,298 to her daughter; and $4,020 to her
son (Dkt. No. 47-7 at 11-12). These amounts were to be reduced by the "maximum
amount [of attorney's fees] allowed" (Dkt. No. 47-7 at 12).
Because Plaintiff had not received payment on December 28, 2016, she filed
another motion for a writ of mandamus (Dkt. No. 47). On February 21, 2017, the
Commissioner opposed Plaintiff's motion and moved for dismissal of her complaint
based on payment to Plaintiff and her children on or about February 2 and 6, 2017 (Dkt.
No. 53-1). Plaintiff agree[d] that so much of her motion as was directed at obtaining
payment from the Commissioner [was] moot, but argue[d] that she [was] entitled to
attorneys' fees and costs under the EAJA (Dkt. No. 54). The Commissioner dispute[d]
this contention (Dkt. No. 57).
Id. at *1-2 (footnote omitted). On June 5, 2017, the undersigned determined that Plaintiff's
request for attorney's fees and expenses under the EAJA was premature because "final judgment"
had not yet entered, denied Plaintiff's motion for a writ of mandamus, and allowed the
Commissioner's motion to dismiss. Id. at *3 (quoting 28 U.S.C. § 2412(d)(1)(B)). Thereafter,
Plaintiff moved for fees and expenses (Dkt. No. 66). The Commissioner opposed Plaintiff's
motion, Plaintiff responded to the Commissioner's opposition, and the Commissioner replied
(Dkt. Nos. 68, 69, 72).
The Commissioner opposes an award of attorney's fees and expenses under the EAJA
alleging that: (1) Plaintiff was not a "prevailing party" as that term is used under the EAJA; (2)
if Plaintiff is deemed to be a prevailing party, her application for fees is untimely with respect to
fees incurred for work performed from September 25, 2012 through December 30, 2014; and (3)
Plaintiff's attorney's requested hourly rate of $250 is excessive (Dkt. No. 68). In the court's view,
binding precedent compels the conclusion that Plaintiff is not a "prevailing party" as that term
has been interpreted. Because Plaintiff did not meet the precondition of being a prevailing party
as the EAJA defines that term, see 28 U.S.C. § 2412(d)(1)(A), she cannot recover under the
statute. Consequently, the court's discussion is limited to the first of the Commissioner's three
The EAJA 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 (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). "The purpose of the Act is 'to ensure that certain individuals . . . will
not be deterred from seeking review of, or defending against, unjustified governmental action
because of the expense involved.'" Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009)
(quoting Scarborough v. Principi, 541 U.S. 401, 407 (2004)). "The EAJA 'reduces the disparity
in resources between individuals . . . and the federal government.'" Aronov, 562 F.3d at 88
(quoting H.R. Rep. No. 99–120(I), at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 133).
Only a "prevailing party" is entitled to an award under the EAJA. 28 U.S.C. §
2412(d)(1)(A). See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human
Res., 532 U.S. 598, 603 (2001) ("In designating those parties eligible for an award of litigation
costs, Congress employed the term 'prevailing party,' a legal term of art."). The Supreme Court
defined "prevailing party" in Buckhannon as "one who has been awarded some relief by the court
. . . ." Id. (emphasis added). "[E]nforceable judgments on the merits and court-ordered consent
decrees create the 'material alteration of the legal relationship of the parties necessary to permit
an award of attorney's fees.'" Id. at 604 (quoting Tex. State Teachers Ass'n. v. Garland Indep.
Sch. Dist., 489 U.S. 782, 792-93 (1989)). In other words, EAJA recovery is limited to litigants
who succeed in a case in which there is a "judicially sanctioned change in the legal relationship
of the parties." Id. at 605. "A party's mere success in accomplishing its objectives . . . is
insufficient to confer it prevailing party status." Castañeda-Castillo v. Holder, 723 F.3d 48, 57
(1st Cir. 2013). See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir.
2001) ("'[A] plaintiff "prevails" when actual relief on the merits of his claim materially alters the
legal relationship between the parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff.'") (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
Prevailing party status has been construed as requiring satisfaction of the following conditions:
" there has been a court-ordered 'material alteration of the legal relationship of the parties,' 
that order has been reduced to an enforceable judgment, and  the judgment has been approved
by the court." Walsh v. Bos. Univ., 661 F. Supp. 2d 91, 94 (D. Mass. 2009) (quoting
Buckhannon, 532 U.S. at 604). The Buckhannon Court's reasoning applies "'generally to all feeshifting statutes that use the "prevailing party" terminology . . . .'" Smith v. Fitchburg Pub. Schs.,
401 F.3d 16, 22 n.8 (1st Cir. 2005) (quoting Doe v. Bos. Pub. Schs., 358 F.3d 20, 25 (1st Cir.
2004)). See also Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 8 (1st Cir. 2011) ("The
concepts that shape the term ['prevailing party'] apply broadly to the entire universe of federal
Plaintiff has failed to establish the EAJA's threshold requirement of being a prevailing
party in light of the absence of court-ordered relief on the merits of her claims at both stages of
the litigation (Dkt. No. 69 at 1). See Walsh, 661 F. Supp. 2d at 94. Although 42 U.S.C. § 405(g)
entitles a claimant to seek review of a decision by the Commissioner, Plaintiff's first motion for
mandamus, which was filed on May 3, 2013, did not seek review under § 405(g) (Dkt. No. 1).
See 42 U.S.C. §405(g). Instead, pursuant to the federal question jurisdiction statute, 28 U.S.C. §
1331, Plaintiff asked the court to order the SSA to pay the amount the ALJ awarded on
September 25, 2012 (id.). Thereafter, the Appeals Council notified Plaintiff that it had reopened
the ALJ's decision due to the alleged miscalculation of the worker's compensation offset and, on
January 24, 2014, it remanded the case to the ALJ for further proceedings, including a new
hearing. 2 On December 30, 2014, Magistrate Judge Neiman denied Plaintiff's motion for
mandamus based, in part, on the court's lack of subject matter jurisdiction under § 1331 and
because, in light of the Appeals Council's decision to reopen the case and remand it to the ALJ,
mandamus was not available to Plaintiff who failed to exhaust all available administrative
remedies (Dkt. No. 41). Magistrate Judge Neiman also denied Plaintiff's December 12, 2013
request for a temporary restraining order/preliminary injunction to preclude the second hearing
before the ALJ (id.). He ordered the case to be closed and remanded to the SSA to conduct the
According to the Appeals Council's notice to Plaintiff, Sections 404.987-404.989 of Title 20 of
the Code of Federal Regulations apply to reopening a case due to an error in a benefit
computation (Dkt. No. 34-3 at 4). Section 404.988(b) permits a decision to be reopened
"[w]ithin four years of the date of the notice of the initial determination" for "good cause," as
defined in § 404.989. 20 C.F.R. § 404.988(b). "A clerical error in the computation or
recomputation of benefits" constitutes "good cause" to reopen a decision. 20 C.F.R. §
404.989(a)(2). The Appeals Council determined that the notice of initial determination in
Plaintiff's case was issued on November 11, 2010. The ALJ found that the SSA's protest to the
Appeals Council was not timely because it was initiated beyond four years of the initial decision
of June 2, 2009 (Dkt. No. 34-3 at 4; Dkt. No. 47-7 at 9).
second hearing (id.). The First Circuit affirmed Magistrate Judge Neiman's decision (Dkt. No.
Plaintiff's second motion for a writ of mandamus on December 28, 2016 sought to direct
the Commissioner to pay the retroactive SSDI benefits the ALJ awarded on September 30, 2016
after the second hearing. See Stewart, 2017 WL 2435281, at *3. Following the Commissioner's
payment of the benefits in February 2017, the court issued an order denying Plaintiff's request
for mandamus relief and granted the Commissioner's motion to dismiss the case as moot. See id.
Buckhannon's rejection of the so-called "catalyst theory" precludes a finding that Plaintiff
was a prevailing party under the EAJA (Dkt. No. 69 at 3-5). Buckhannon, 532 U.S. at 605. "A
defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff
sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id.
The Court concluded that its "precedents . . . counsel[ed] against holding that the term 'prevailing
party' authorizes an award of attorney's fees without a corresponding alteration in the legal
relationship of the parties." Id. See Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 n.5 (1st
Cir. 2009) (rejecting plaintiff's catalyst argument); Aronov, 562 F.3d at 89 (Buckhannon "held
that mere success in accomplishing a party's objectives is insufficient to be a prevailing party for
a fee award. The Court rejected the catalyst theory which had been accepted by many circuits,
including this one.") (citing Buckhannon, 532 U.S. at 606); Alonso-Velez v. Comm'r of Soc. Sec.,
796 F. Supp. 2d 300, 303 n.4 (D.P.R. 2011) (noting that plaintiff could not claim prevailing party
status under a catalyst theory after Buckhannon).
Relying on Rice Servs., Ltd. v. United States, 405 F.3d 1017 (Fed. Cir. 2005), Plaintiff
contends that she has prevailing party status and is entitled to EAJA relief because she received a
judgment on the merits on December 30, 2014 when Magistrate Judge Neiman ordered that the
case be closed and remanded to the SSA for the second hearing (Dkt. No. 41 at 2; Dkt. No. 69 at
4-5). However, Rice's holding supports the Commissioner's position that Plaintiff is not a socalled prevailing party and, instead, is advancing a catalyst theory. In Rice, the plaintiff sought
judicial relief from the Department of the Navy's failure to comply with the terms of its
solicitation before awarding a contract to another party. Id. at 1018-19. In Rice, as here, the
government voluntarily "undertook remedial action" before the court ruled on the plaintiff's
requests for relief. Id. at 1027. Once the government informed the court that remedial action
was underway, the court found the plaintiff's "'protest . . . essentially moot'" and dismissed the
case "without reaching the merits." Id. An order that "[t]he remedial action described and
promised in [the government's] submission shall be undertaken" was included in the dismissal
order's first paragraph. Id. at 1026 at n.5. The appellate court rejected the plaintiff's contention
that this portion of the dismissal order materially altered the legal relationship between the
parties thereby affording the plaintiff prevailing party status under the EAJA. Id. at 1027. The
court found that even if the plaintiff's motion was a catalyst for the government voluntarily
undertaking remedial measures, the plaintiff was not a prevailing party. Id. The court explained:
Buckhannon does not allow a court to take what would otherwise be a "catalyst theory"
case and convert it — through language like that used in paragraph one of the Dismissal
Order — into a case where the plaintiff is nevertheless accorded "prevailing party" status.
Were we to hold otherwise, the Court's holding in Buckhannon could be easily
circumvented by any order "directing" a party to take action.
Id. Similar reasoning requires the conclusion that Magistrate Judge Neiman's order denying
Plaintiff's request for relief, closing the case without entering a judgment on the merits, and
directing the Commissioner to hold the hearing that she had voluntarily determined was required
does not convert Plaintiff's catalyst theory case into one that permits her to obtain attorney's fees
as a prevailing party under the EAJA. Contrast Castañeda-Castillo, 723 F.3d at 58-59 (plaintiff
qualified as a prevailing party based on the court's order of remand to a government agency,
retention of jurisdiction, and entry of final judgment on the merits after plaintiff succeeded in the
remand proceedings before the agency).
Plaintiff further contends that her second motion for a writ of mandamus filed in
December 2016 caused the Commissioner to make the payment in February 2017, and, therefore,
the payment was not made voluntarily (Dkt. No. 69 at 3-4). However, in similar circumstances,
courts have interpreted the Supreme Court's rejection of the catalyst theory as requiring denial to
plaintiffs of prevailing party status that would entitle those plaintiffs to EAJA fees. Compare Ma
v. Chertoff, 547 F.3d 342, 344 (2d Cir. 2008) (plaintiff did not "fit the definition of a 'prevailing
party'" where defendants voluntarily gave plaintiff the relief he sought and, thereafter, the court
dismissed plaintiff's action for a declaratory judgment and mandamus as moot and did not award
the requested relief); Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigration Servs.,
452 F.3d 1254, 1258 (11th Cir. 2006) (plaintiffs were not "prevailing parties" because they "did
not obtain relief on the merits of their claim;" instead, the government voluntarily acted on their
applications before the district court entered final judgment and, then, the court dismissed the
case as moot).
Presuming that she is a prevailing party and, citing Pierce v. Underwood, 487 U.S. 552
(1988), Plaintiff argues that the "substantially justified" or "special circumstances" exceptions to
the EAJA do not warrant denying her request for attorney's fees in light of the Commissioner's
alleged bad faith (Dkt. No. 69 at 1-3 & n.1). Id. at 557, 568-71. Because Plaintiff fails to
establish that she was a prevailing party, however, the Commissioner's alleged bad faith does not
enter into the analysis of whether or not to award attorney's fees and expenses under 20 U.S.C. §
2412(d). See Castañeda-Castillo, 723 F.3d at 57 (in order to prove eligibility for an award of
attorneys' fees under the EAJA, a plaintiff "must establish (1) that he is the prevailing party in
the civil action; (2) that his petition was timely filed; (3) that the government's position was not
substantially justified; and (4) that no special circumstances make an award against the
government unjust."). Compare Rodrigues v. Colvin, Civil Action No. 13-30207-MGM, 2015
WL 6157909, at *2-3 (D. Mass. 2015) (addressing the appropriate amount of attorney's fees
under the EAJA after the parties agreed that plaintiff was a prevailing party and finding that the
"'special circumstances'" exception to § 2412(d)(1)(A), which considers a plaintiff's bad faith,
did not apply to the facts of the case); GasPlus, L.L.C. v. U.S. Dept. of the Interior, 593 F. Supp.
2d 80, 85-88 (D.D.C. 2009) (plaintiff who obtained a judgment on the merits was a prevailing
party under the EAJA and was entitled to attorney's fees under § 2412(d)(1)(A), but was not
entitled to an award of attorney's fees under § 2412(b), which permits a discretionary fee award
to a prevailing party if the court finds the government acted in bad faith).
The Commissioner's delay in paying Plaintiff benefits she had agreed to pay is
regrettable, but Plaintiff did not obtain "judicial relief." Buckhannon, 532 U.S. at 606.
Accordingly, she is not a prevailing party and is not entitled to recover attorney's fees and
expenses under the EAJA. 3
Plaintiff requests an additional award of $5,459.25, which, apparently, is the amount of
attorney's fees withheld from her retroactive benefits award that was incurred to obtain the
favorable ALJ decision (Dkt. No. 66). The Commissioner correctly notes that recovery under
the EAJA is limited to attorney's fees incurred "in any civil action." 28 U.S.C. § 2412(d)(1)(A).
Because judicial review of the Commissioner's final decision is obtained by commencing a "civil
action" in the district court, the EAJA does not entitle Plaintiff to recover attorney's fees for work
performed at the administrative level. 42 U.S.C. § 405(g). See Perkins v. Astrue, 568 F. Supp.
2d 102, 103 n.1 (D. Mass. 2008) ("While the EAJA applies to civil actions filed in court, a
separate statute provides that, at the administrative level, Social Security claimants, in limited
For the foregoing reasons, Plaintiff's motion for attorney's fees and expenses (Dkt. No.
66) is DENIED. The clerk's office is directed to close the case.
It is so ordered.
Dated: October 23, 2017
/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge
circumstances, may be entitled to attorney's fees equal to a certain percentage of the claimant's
recovery.") (citing 42 U.S.C. § 406).
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