Campbell v. Berryhill

Filing 7

ORDER denying without prejudice to renewal 5 Motion for Reimbursement of Pltf's Filing Fee. Signed by District Judge Martin Reidinger on 5/4/12. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12cv05

TERESA CAMPBELL,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Reimbursement of Plaintiff’s Filing Fee [Doc. 5].
In the motion, which is opposed by the Defendant, Plaintiff’s counsel
states that he advanced the filing fee to his client. [Id.]. On March 27, 2012,
the Court granted the parties’ consent motion to remand this case to the
Commissioner pursuant to Sentence Six of 42 U.S.C. §405. [Doc. 4]. Counsel
argues that the remand caused the Plaintiff to attain prevailing party status
and, as a result, he seeks reimbursement of the filing fee pursuant to the
Equal Access to Justice Act (EAJA).
The EAJA provides that a court shall award fees and other
expenses to a prevailing party, other than the United States, in

any civil action brought by or against the United States, unless the
court finds that the position of the United States was substantially
justified or that special circumstances would make an award
unjust. Eligibility for a fee [or costs] award in a civil action
therefore requires that (1) the claimant be a prevailing party, (2)
the government’s position was not “substantially justified,” and (3)
no special circumstances make an award unjust. ... [However,]
one does not earn “prevailing party” status by simply obtaining a
remand for further proceedings before the agency from which he
appealed.
Marshall v. Commissioner of Social Security, 444 F.3d 837, 840 (6 th Cir. 2006)
(quoting 28 U.S.C. §2412).
A Sentence Six remand actually preserves a claimant’s right to file a fee
and/or costs petition if he or she succeeds on remand. Id., at 841. Indeed,
the district court retains jurisdiction over the action during the remand. Id.;
Krishnan v. Barnhart, 328 F.3d 685, 691 (D.C. 2003). Nonetheless, a
Sentence Six remand, “by itself, is not a sufficient basis for a litigant to claim
prevailing party status.” Marshall, 444 F.3d at 842. Counsel’s request for
reimbursement for the filing fee cost is therefore premature. Cummiskey v.
Commissioner, Social Security Administration, 2012 WL 1431486 **5 (D.Md.
2012). “That is, at the appropriate time if [Campbell] ultimately prevails, [she]
may file a bill of costs and an application for ... other expenses.” Id.; Green
v. Sullivan, 788 F.Supp. 275, 276 (W.D.Va. 1992).

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IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Reimbursement of Plaintiff’s Filing Fee [Doc. 5] is hereby DENIED without
prejudice to renewal.
Signed: May 4, 2012

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