Barrow v. Colvin
Filing
36
ORDER granting 31 Motion for Attorney Fees as limited to the extent set forth in the attached order - Signed by District Judge Louise Wood Flanagan on 2/17/2016. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
4:14-CV-137-FL
KENNETH E. BARROW,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
ORDER
This matter is before the court on plaintiff’s motion for attorney’s fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (DE 31). Defendant has responded in
opposition and plaintiff has replied. In this posture the issues raised are ripe for ruling. For the
following reasons, plaintiff’s motion is granted, subject to the limitations set forth herein.
BACKGROUND
Plaintiff commenced the instant matter on August 4, 2014, seeking judicial review of the
denial of his application for a period of disability and disability insurance benefits. On October 9,
2014, defendant filed an answer seeking affirmance of the decision complained of. Pursuant to the
court’s scheduling order, plaintiff filed a motion for judgment on the pleadings on December 8,
2014. Defendant filed a cross motion for judgment on the pleadings on January 15, 2015.
On April 10, 2015, plaintiff filed a consent motion for leave to file a supplemental brief in
light of the Fourth Circuit’s decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). The court
granted the motion, directed plaintiff to file a supplemental brief within 15 days, and allowed
defendant 15 days thereafter to file a responsive supplemental brief. Plaintiff filed a supplemental
brief on April 29, 2015, and defendant did not file a supplemental brief. Thereafter, the court
referred the matter to U.S. Magistrate Judge Robert B. Jones, Jr., for a memorandum and
recommendation (“M&R”) on the cross motions for judgment as a matter of law.
On August 17, 2015, Judge Jones entered an M&R wherein he recommended that plaintiff’s
motion for judgment on the pleadings be allowed, defendant’s motion for judgment on the pleadings
be denied, and the case be remanded for further proceedings in accordance with sentence four of 42
U.S.C. § 405(g). Neither party filed objections to the M&R, and on September 4, 2015, the court
adopted the M&R. The court entered judgment in favor of plaintiff on September 8, 2015.
On December 3, 2015, plaintiff filed the instant motion, seeking $6,618.15 in attorney’s fees
under the EAJA.
DISCUSSION
A.
Entitlement to Fees and Expenses
The Equal Access to Justice Act (“EAJA”), provides for an award of reasonable attorney’s
fees and expenses in accordance with the following provision:
Except as otherwise specifically provided by statute, a court shall 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. § 2412(d)(1)(A) (emphasis added). In addition, the statute provides:
A party seeking an award of fees and other expenses shall, within thirty days of final
judgment in the action, submit to the court an application for fees and other expenses
. . . . The party shall also allege that the position of the United States was not
substantially justified. Whether or not the position of the United States was
2
substantially justified shall be determined on the basis of the record . . . which is
made in the civil action for which fees and other expenses are sought.
Id. § 2412(d)(1)(B) (emphasized). “‘[P]osition of the United States’ means, in addition to the
position taken by the United States in the civil action, the action or failure to act by the agency upon
which the civil action is based.” Id. § 2412(d)(2)(D).
Although the phrase “substantially justified” is not defined in the statue, the Supreme Court
has interpreted the phrase to mean “justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988). “[A] position can be justified even though it is not
correct, and . . . it can be substantially (i.e., for the most part) justified if a reasonable person could
think it correct, that is, if it has a reasonable basis in law and fact.” Id. at 566 n.2. The phrase, thus,
does not connote “‘justified to a high degree,’ but rather ‘justified in substance or in the main.’” Id.
at 565. As such, the standard is comparable to one that is “satisfied if there is ‘a genuine dispute,’”
or “if reasonable people could differ as to the appropriateness of the contested action.” Id. “The
United States has the burden of showing that its position was substantially justified.” United States
v. 515 Granby, LLC, 736 F.3d 309, 315 (4th Cir. 2013).
“[W]hen determining whether the government’s position in a case is substantially justified,
we look beyond the issue on which the petitioner prevailed to determine, from the totality of
circumstances, whether the government acted reasonably in causing the litigation or in taking a
stance during the litigation.” Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir.
1993). “[M]erits decisions in a litigation, whether intermediate or final . . . obviously must be taken
into account both by a district court in deciding whether the Government’s position, though
ultimately rejected on the merits, was substantially justified, and by a court of appeals in later
3
reviewing that decision for abuse of discretion.” EEOC v. Clay Printing Co., 13 F.3d 813, 815 (4th
Cir. 1994).
This case presents unique circumstances where the government was substantially justified
in its agency position memorialized in the Administrative Law Judge (ALJ) decision, and in the
government’s initial position in defending the ALJ decision, but where the government was not
substantially justified in continuing its defense of the ALJ decision, following the intervening Fourth
Circuit opinion in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Looking to “the totality of
circumstances,” the court finds that the government did not act reasonably in maintaining its stance
in the litigation following the Mascio decision. Roanoke River Basin Ass’n, 991 F.2d at 139.
In so holding, the court is guided by its merits decision in this matter, reflected in the M&R,
in which the court determined that three of plaintiff’s claims were without merit, whereas one claim
in light of the Fourth Circuit opinion in Mascio was meritorious and required remand as a matter of
law. In particular, the court determined in the M&R that remand was necessary due to the ALJ’s
treatment of limitations in concentration, persistence, and pace (hereinafter, the “concentration,
persistence, and pace claim”):
It is apparent from the ALJ’s discussion that she believed limiting Claimant to
performing simple, routine, repetitive tasks sufficiently accounted for his “mild
cognitive impairment.” (R. 17). Yet, while generally characterizing Claimant’s
cognitive impairment as “mild” (R. 1 7), the ALJ specifically found Claimant to have
“moderate difficulties” in concentration, persistence and pace (R. 14) and
“significant, work related mental restrictions” (R. 18). The Fourth Circuit in Mascio
held, in conformity with other circuits, that “an ALJ does not account for a
claimant’s limitations in concentration, persistence, and pace by restricting the
hypothetical question to simple, routine tasks or unskilled work.” Mascio, 780 F.3d
at 638 [internal quotations omitted]. . . . Thus, in light of Mascio, to the extent the
Commissioner suggests a per se rule that mild or even moderate limitations are
compatible with performing simple jobs, Def.’s Mem. [DE-23] at 10, such a rule is
untenable and must be rejected.
4
Here, despite the ALJ’s findings that Claimant had the impairments of depression
and cognitive disorder and “moderate difficulties” in concentration, persistence and
pace (R. 13-14 ), the ALJ failed to sufficiently consider how these impairments
impact Claimant’s “work-related abilities on a function-by-function basis,” S.S.R.
96-89, 1996 WL 374184, at *1, including the functions of “understanding,
remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting,” 20 C.F .R. 404.1545(
c), or the ability to stay on task, Mascio, 780 F.3d 638. On remand the ALJ must
explain how Claimant’s mental limitations impact Claimant’s “ability to perform
relevant functions” and sufficiently convey Claimant’s mental limitations in the
hypothetical to the VE. Id. at 637-38 . . . .
Accordingly, it is recommended that the case be remanded for the Commissioner to
properly consider, in conformity with Mascio, Claimant’s mental impairments in
formulating an accurate RFC and appropriate hypothetical to the VE.
(DE 28 at 12-14). In this manner, Mascio provided a clear basis for remand on the basis of the
concentration, persistence, and pace claim. (See id.). Plaintiff argued as much in part of his
supplemental brief following Mascio. (See DE 27 at 3-4).
Although the government conceivably could have sought to defend its position on the merits,
even following Mascio, on the basis that somehow the error was harmless or Mascio could be
distinguished, the government did not do so during the course of the litigation. Nor has the
government sought to defend its position on the claim following Mascio in response to the instant
motion for attorney’s fees. The government’s failure to set forth in its response to the EAJA motion
any “reasonable basis in law and fact” for its opposition to the claim following Mascio demonstrates
the lack of substantial justification in its litigation position. Pierce, 487 U.S. at 566 n.2.
Accordingly, the court holds that plaintiff is entitled to an award of attorney’s fees under the
EAJA on the basis that the government’s litigation position was not substantially justified. In so
holding, however, the court emphasizes the limitations on this holding to the unique circumstances
of this case. Contrary to the suggestion in plaintiff’s reply brief, (DE 35 at 3-4), the court does not
5
find determinative to the analysis the government’s silence following filing of plaintiff’s
supplemental brief or the government’s decision not to object to the M&R. The court’s analysis
under the EAJA is an objective determination, looking to whether “a reasonable person could think”
the government’s position was correct. Pierce, 487 U.S. 566 n.2. In some instances, the government
may decide not to respond to a supplemental brief or object to an M&R recommending remand, even
though “a reasonable person could think [the government’s position is] correct, that is, if it has a
reasonable basis in law and fact.” Id. In this case, however, the government has not articulated any
basis in which its position on the prevailing claim, following Mascio, had a reasonable basis in law
and fact. (See DE 34 at 5-6). It is this lack of basis in law and fact that permits an EAJA award in
this instance, not the government’s silence following plaintiff’s supplemental brief or the M&R.
In sum, under these limited circumstances, the government’s position was not substantially
justified, and plaintiff is entitled to an award of fees and expenses under the EAJA.
B.
Reasonableness of Fees and Expenses Claimed
The court’s determination of plaintiff’s entitlement to an EAJA fee award does not end the
matter. “The district court is accorded ‘substantial discretion in fixing the amount of an EAJA
award,’” and “is charged with the duty to ensure that the final award is reasonable.” Hyatt v.
Barnhart, 315 F.3d 239, 254 (4th Cir. 2002) (quoting Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163
(1990)). “The extent of a plaintiff’s success is an important factor to consider when determining the
reasonableness of the fees requested.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)).
“Unsuccessful claims that are ‘distinct in all respects’ from the claims upon which the plaintiff has
prevailed ‘should be excluded in considering the amount of a reasonable fee.’” Id. (quoting
Hensley, 461 U.S. at 440)). In addition, “[w]here a lawsuit consists of related claims, [and] . . .
6
where the plaintiff achieved only limited success, the district court should award only that amount
of fees that is reasonable in relation to the results obtained.” Hensley, 461 U.S. at 440. Moreover,
“fairness and reasonableness dictate that the SSA may only be held liable for attorneys’ fees and
expenses fairly attributable to the unjustified positions taken by the SSA.” Hyatt, 315 F.3d at 254.
Other relevant factors include the novelty and complexity of the issues presented, and the
experience and skill of the attorney. See Bunn v. Bowen, 637 F.Supp. 464, 469 (E.D.N.C.1986).
In addition, the court must reduce compensable hours claimed if for paralegal tasks or clerical tasks
normally performed by non-attorneys. See Hyatt, 315 F.3d at 255. The court now turns to
application of these principles and guidelines to the fees and expenses claimed by plaintiff.
Plaintiff claims entitlement to attorney fees in the amount of $6,618.15 for 34.65 hours of
attorney work at a rate of $191.00 per hour. Of the total 34.65 hours claimed, 7.9 hours were spent
reviewing the administrative record and preparing and reviewing initial case filings; 18.25 hours
were spent preparing an initial brief and reviewing the government’s brief; 5.25 hours were spent
preparing the supplemental brief; 2.35 hours were spent reviewing court orders and notices; and 2.0
hours were spent on the EAJA motion. (See DE 31-2).
The court finds that a portion of these claimed hours must be excluded for unsuccessful
claims pursued or for expenses not attributable to the unjustifiable positions taken by the
government. The court considers first the nature and proportion of unsuccessful claims. Plaintiff
sought remand on four grounds, only one of which the magistrate judge found availing:
1.
The concentration, persistence, and pace claim. (See M&R at 8-14).
2.
A claim that the ALJ failed to explain her rejection of stooping and crouching
limitations. (See M&R at 14-15).
7
3.
A claim that the ALJ failed to account for plaintiff’s neuropathy in the RFC
determination. (See M&R at 15-17).
4.
A claim that the ALJ erred in only determining disability through plaintiff’s DLI.
(See M&R at 17-19).
The magistrate judge determined that only the first claim was meritorious and required
remand, but that the other claims lacked merit and the ALJ did not err in the manner plaintiff
claimed. (See M&R at 8-19). This court adopted the M&R’s determination in these respects
without change. Given that claims 3 and 4 are not related to claims 1 and 2, and given that they
were wholly unsuccessful, the court finds that fees claimed reasonably must be reduced in
proportion to take into account these unsuccessful claims. See Hensley, 461 U.S. at 440; Hyatt, 315
F.3d at 254. Although claim 2 is not directly related to claim 1, the court will give plaintiff the
benefit of an inference, advanced in plaintiff’s supplemental brief, that both claims 1 and 2 were
related to the issues covered by the court’s ruling in Mascio.
While an exact accounting of hours spent per claim is not possible, based on the limiting
principles set forth in Hyatt and Hensley, the court finds that a reduction of 50% of all categories
of time (except time spent preparing the EAJA motion) is appropriate, reflecting a reduction for 2
out of 4 claims that were wholly unsuccessful and unrelated to the successful claim. Cf. Dixon v.
Astrue, No. 5:06-CV-77-JG, 2008 WL 360989, at *4 (E.D.N.C. Feb. 8, 2008) (reducing counsel’s
time to one-third of that requested where the court remanded for one reason suggested by plaintiff
but not for six other grounds advanced). A similar, if not greater, reduction would be warranted
under an alternative basis for approximation, which would take into account that very few of the
claimed fees were spent upon claims for which the government took an unjustifiable position.
8
Indeed, overall time claimed, following the date of the Mascio decision (4.35 hours), was relatively
small.
In sum, the court reduces by 50% the total 32.65 itemized hours claimed by plaintiff’s
counsel (except time spent preparing the EAJA motion), yielding a subtotal of compensable time
of 16.4 hours (rounding to nearest tenth of hour). The court adds 2 hours claimed as spent on the
EAJA motion, bringing the total to 18.4 hours.1 Next, the court removes .5 hours for one itemized
entry comprising paralegal work not normally conducted by an attorney: “Review Scheduling Order
– Set Diary Dates.” (DE 31-2). This yields a grand total of compensable hours of 17.9 hours.
Finally, the court finds the claimed hourly rate of $191.00 per hour to be reasonable.
Multiplying 17.9 hours by $191.00 equals a reasonable EAJA fee award under the
circumstances of this case, in the amount of $3,418.90.
CONCLUSION
Based on the foregoing, plaintiff’s motion for attorney’s fees under the EAJA is GRANTED,
limited to the extent set forth herein. In particular, the court AWARDS attorney’s fees under the
EAJA, 28 U.S.C. § 2412(d)(1)(A), in the amount of $3,418.90.
Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), the fee award will first be subject to offset
of any debt plaintiff may owe to the United States. Defendant will determine whether plaintiff owes
a debt to the United States. If so, the debt will be satisfied first, and if any funds remain, they will
be made payable to plaintiff and mailed to plaintiff’s counsel. If the United States Department of
the Treasury reports to the Commissioner that plaintiff does not owe a federal debt, defendant will
1
In light of the unique circumstances of the EAJA fee motion in this case, the court rejects the government’s
suggestion that the amount of time spent on the EAJA motion was unreasonable. In addition, the court notes that plaintiff
has not separately claimed time spent for preparation of a reply in support of the motion, and the court finds that 2 hours
constitutes a reasonable amount of time for the necessary briefing associated with the motion as a whole.
9
exercise its discretion and honor an assignment of EAJA fees (see DE 31-1), and pay the awarded
fees directly to plaintiff’s counsel. No additional petition pursuant to 28 U.S.C. § 2412(d) shall be
filed.
SO ORDERED, this the 17th day of February, 2016.
_________________________
LOUISE W. FLANAGAN
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?