SPADACCINI v. COMMISSIONER OF SOCIAL SECURITY

Filing 26

OPINION AND ORDER denying 22 Motion for Attorney Fees. Signed by Judge Kevin McNulty on 3/27/18. (cm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STEPHEN SPADACCINI,
Civ. No. 15—7382 (1(M)

Plaintiff,
V.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

OPI NI ON & 0 RDER

Defendant.

KEVIN MCNULTY, U.S.D.J.:
In 2013, this matter was initially remanded to the SSA by Judge Martini.
Spadaccini v. Comm’r of Soc. Sec., No. CIV. 2:12-06246 WJM, 2013 WL
6054605 (D.N.J. Nov. 15, 2013). The matter was reheard at the administrative
level, and Mr. Spadaccini again appealed. By Opinion (“Op.”, ECF no. 20) and
Order (ECF no. 21), this Court affirmed the decision of the SSA denying DIB
benefits for the period September 1, 2007 through December 31, 2008 (the
“DIE issue”). I found, however, that the AW had failed to consider or rule on
the claim for 551 for the period January 1, 200g, through March 5, 2011 (the
“551 issue”), and remanded for further consideration of that issue.1 Counsel for
Mr. Spadaccini now moves for attorney’s fees pursuant to the Equal Access to

Justice Act (EAJA), 28 U.S.C.

§ 2412(d), claiming to have prevailed on the

portion of the Court’s opinion that remanded on the 551 issue. (ECF no. 22) For
the reasons stated herein, the application is denied.

I

Familiarity with my prior Opinion is assumed.
1

The concern of the EAJA is “that the Government, with its vast
resources, could force citizens into acquiescing to adverse Government action,
rather than vindicating their rights, simply by threatening them with costly
litigation

.

.

.

.“

Pierce u. Underwood, 487 U.S. 552, 575 (1988). Thus the EAJA

does not automatically award fees to the victor in a suit against the
government. See Williams v. Ast rue, 600 F.3d 299, 302 (3d Cir. 2009). Rather,
it awards fees to the victor “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 For the reasons stated herein, I

find that the government’s opposition to this appeal was “substantially
justified.” In addition, “special circumstances”—chiefly, the failure of
petitioner’s counsel to present the omitted issue clearly to the AU, or to this
Court on appeal—militate against an award of fees.

Judge Wolfson has usefully summarized the “substantially justified” standard thus:
The Third Circuit has held that substantial justification
“constitutefs] a middle ground between an automatic award of fees to a
prevailing party and an award made only when the government’s position
was frivolous.” Washington, 756 F.2d at 961 (citing Dougherty v. Lehman,
715 F.2d 555, 563 n.12 (3d Cir. 1983)). As such, in order to meet its
burden of substantial justification, the Commissioner must show that
her position in the underlying litigation contained the following: “(1) a
reasonable basis in truth for the facts alleged; (2) a reasonable basis in
law for the theory it propounded; and (3) a reasonable connection
between the facts alleged and the legal theory advanced.” Id. at 961
(citing Nawral Resources Defense Council v. EPA, 703 F.2d 700, 708 (3d
Cir. 1983)). Stated differently, “an agency position is substantially
justified if it has a reasonable basis in both law and fact.” Hanover Potato
Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993) (citation
omitted). Importantly, the Commissioner’s position can have a
reasonable basis in both law and fact, even if a court remanded the AU’s
decision because it was not supported by substantial evidence. Morgan v.
Perry, 142 F.3d 670, 685 (3d Cir. 1998).
*2 (D.N.J. May 9,
Standowski t Cotyin, No. CV 13-5663 (FLW), 2016 WL 2625029, at

2

2016)
2

This case went before the AU on an earlier remand by Judge Martini. As
recounted in my earlier Opinion, Spadaccini’s counsel stated or implied to to
the AU that the only issue to be considered was the DIB issue. AS to the SSI
issue, counsel did not seek to correct the AU’s oversight, if oversight it was.
See Op. 18—20. After the AU denied relief on the DIE issue, Spadaccini’s
counsel filed an appeal to this Court. On appeal, the second, SSI issue did not
go wholly unmentioned, but it was not clearly presented for this court’s review,
and the petitioner’s brief fairly presented only the DIE issue. See op. 20.
On review of the case, I noted that the SSI issue for the period January
1, 2009 through March 5, 2011 seemed to have gone unadjudicated. Sua
sponte I entered a text order directing counsel for both sides to address it. (ECF
no. 16) They did so, in short letter submissions. (ECF nos. 17, 18, 19) In my
Opinion, stating that I was loath to find waiver, I remanded the case on the 551
issue only, so that the AU could consider it in the first instance. (Op. 20—21)
The government’s position was substantially justified. It did not drag Mr.
Spadaccini into court on flimsy grounds. Rather, the government opposed the
appeal on the only grounds fairly presented, and prevailed on those grounds.
Even where the plaintiff has prevailed or obtained a mixed result, a court may
find that the government’s position was substantially justified. See Bassett v.
Astme, 641 F.3d 857, 860

(7th

Cir. 2011) (remanding for clarification of onset

date but denying fee award, noting that “it typically takes something more
egregious than just a run-of-the-mill error in articulation to make the
commissioners position unjustified”); Williams, 600 F.3d at 302; Standowski v.
*3 (D.N.J. May 9, 2016). And
Calvin, Civ. No. 13-5663, 2016 WL 2625029 at
this case does not even come up to that mixed-result threshold. True, there
was an additional ground on which the government did not prevail (the 551
issue). That, however, does not bespeak any weakness in the government’s
position, and does not suggest that the government was unreasonable in filing
an opposition to the appeal, which until the Court acted sua sponte involved
3

only the DIB issue. The 551 issue, moreover, was not decided adversely at the
administrative level; it was overlooked and unadjudicated. Counsel for both
sides, at the court’s prodding, addressed it only in short letter submissions.
And the result was not in any sense a victory, but rather a remand so that the
issue could be considered in the first instance.
Second, the “special circumstances” of this case argue against an award
of fees, which would reward petitioner’s counsel for its own oversights. As
noted above, counsel failed to clearly present the 551 issue to the AW on the
first remand.
As noted, the matter was initially remanded by Judge Martini in 2013.
Counsel (the same counsel representing the claimant here) was awarded a fee
of $6050 for prevailing on that appeal. (Civ. No. 12-6246, ECF no. 21) Having
won a remand, counsel then failed to pursue the SSI issue before the AW. As a
result, the SSI issue was never adjudicated on remand. in a very real sense,
then, the application here seeks a second fee for a second, duplicative remand.
And that remand seemingly occurred only because the Court raised the issue

sua sponte. Under the circumstances, a fee award would be inequitable.
ORDER
Accordingly, IT IS this 27th day of March, 2018
ORDERED that the application for attorney’s fees (ECF no. 22) is
DENIED.

KEVIN MCNULTY
United States District

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