Irvine v. Commissioner of Social Security

Filing 34

ORDER granting 30 Motion for Attorney Fees; granting 33 Supplemental Motion for Attorney Fees. Signed by Honorable Timothy D. DeGiusti on 11/17/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NITA EILEEN IRVINE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.

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Case No. CIV-16-917-D

ORDER AWARDING ATTORNEY’S FEES
Before the Court are Plaintiff’s Application for Award of Attorney’s Fees Under the
Equal Access to Justice Act [Doc. No. 30] and Supplemental Application for Award of
Attorney’s Fees Under the Equal Access to Justice Act to Include Fees for Legal Work on
Fee Litigation [Doc. No. 33].

By the former, Plaintiff seeks an award of legal fees

pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
$7,251.60 to compensate for 34.5 hours of attorney time, and 4.2 hours of paralegal time
expended on legal work in this matter.

By the latter, Plaintiff seeks an additional amount

of $392.00 to compensate for time expended by her attorney in preparing a reply brief to
address the Commissioner’s opposition to her fee request, discussed infra. Plaintiff is the
prevailing party in this action under the Social Security Act, 42 U.S.C. § 405(g), by virtue
of the Judgment and Order of Remand [Doc. No. 27], reversing the Commissioner’s
decision and remanding the matter for further administrative proceedings consistent with
the magistrate judge’s Report and Recommendation.

Defendant opposes Plaintiff’s Application on the ground that the Commissioner’s
position in this case was substantially justified. “Under the EAJA, the government bears
the burden of showing that its position was substantially justified.” Estate of Smith v.
O’Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991); see Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007) (“Commissioner had the burden of proof to show that her position
was substantially justified”). To carry its burden, “the government must prove that its
case had a reasonable basis in law and in fact. The term ‘substantially justified’ has been
defined as ‘justified . . . to a degree that could satisfy a reasonable person.’” Estate of
Smith, 930 F.2d at 1501 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)) (citation
omitted); see Hackett, 475 F.3d at 1172. Courts “consider the reasonableness of the
position the [Commissioner] took both in the administrative proceedings and in the civil
action Plaintiff commenced to obtain benefits.” Gutierrez v. Sullivan, 953 F.2d 579, 585
(10th Cir. 1992); see Hackett, 475 F.3d at 1172.
Upon consideration of the law, the case record, and the arguments of the parties, the
Court finds: (1) the Commissioner’s position in the case was not substantially justified;
(2) Plaintiff is entitled to an award of attorney’s fees under EAJA, 28 U.S.C. § 2412(d);
and (3) the requested amount is reasonable.

In making these findings, the Court has

carefully considered Defendant’s arguments to show that “the Commissioner’s position in
this case was reasonable because the record contained facts to support her argument and
was based on a reasonable interpretation of the law.” See Def.’s Resp. Br. [Doc. No. 31]
at 3. The Court notes, however, that the Commissioner’s decision was reversed in this
case because the magistrate judge found Defendant’s attempts to justify the determination
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of the administrative law judge (“ALJ”) consisted of “post-hoc justifications that were not
included in the ALJ’s decision.” See R. & R. [Doc. No. 25] at 6. Defendant did not
object to the Report and Recommendation, and waived further judicial review of the
magistrate judge’s findings on both factual and legal issues. See 7/18/17 Order [Doc.
No. 26]. Thus, the Court rejects Defendant’s view of her litigation position, and finds
that Defendant has failed to carry her burden to show that her position was reasonable in
law and in fact. The Court further finds, based on Defendant’s failure to file any timely
response to Plaintiff’s Supplemental Application as required by LCvR7.1(g), that Plaintiff
should be awarded an additional fee for time spent by her attorney in litigating the EAJA
fee issue.1
IT IS THEREFORE ORDERED that Plaintiff’s Application and Supplemental
Application [Doc. Nos. 30 & 33] are GRANTED. The Court orders an award of attorney
fees to Plaintiff pursuant to the Equal Access to Justice Act in the amount of $7,643.60.
Should an additional fee award under 42 U.S.C. § 406(b) subsequently be authorized,
Plaintiff’s attorney shall refund the smaller amount to Plaintiff as required by Weakley v.
Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

1

“EAJA fees may be awarded for litigation over EAJA fees and the initial ‘finding that
the Government’s position lacks substantial justification, like the determination that a claimant is
a “prevailing party,” operates as a one-time threshold for fee eligibility.’ The district court has
discretion to determine the amount of such a fee, or whether to award one at all.” Sanders v.
Astrue, 287 F. App’x 721, 723 (10th Cir. 2008) (citation omitted; quoting Comm’r v. Jean, 496
U.S. 154, 160 (1990)).
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IT IS SO ORDERED this 17th day of November, 2017.

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