BIRKNER v. COLVIN

Filing 47

ORDER granting 24 Motion for Attorney Fees: Plaintiff is awarded attorney fees under the EAJA in the amount of $8,266.12 to be paid in accordance with the Order. Signed by Judge Alan N. Bloch on 5/27/2016. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LISA BIRKNER,
Plaintiff,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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) Civil Action No. 13-103-E
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ORDER
AND NOW, this 27th day of May, 2016, upon consideration of Plaintiff’s “Motion for
Attorneys Fees under the Equal Access to Justice Act" (Doc. No. 24) and memorandum in support
thereof (Doc. No. 25), filed in the above-captioned matter on December 29, 2014, and in further
consideration of Defendant’s response thereto (Doc. No. 31), filed on February 3, 2015, and on
Plaintiff’s reply (Doc. No. 46), filed on November 19, 2015,
IT IS HEREBY ORDERED that said motion is GRANTED. IT IS FURTHER
ORDERED that Plaintiff, Lisa Birkner, is awarded attorney fees under the Equal Access to
Justice Act in the amount of $8,266.12. These attorney fees will be paid directly to
Plaintiff and sent to the business address of Plaintiff’s counsel. Full or partial remittance of the
awarded attorney fees will be contingent upon a determination by the Government that Plaintiff
owes no qualifying, pre-existing debt(s) to the Government. If such a debt(s) exists, the
Government will reduce the awarded attorney fees in this Order to the extent necessary to satisfy
such debt(s).

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Plaintiff’s counsel seeks fees under the Equal Access to Justice Act, 28 § U.S.C. 2412(d)
(“EAJA”) in connection with the above-captioned Social Security matter litigated before this
Court. His firm represented Plaintiff in this matter, an appeal from the determination of the
Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claim for disability
insurance benefits and supplemental security income benefits. On September 29, 2014, this Court
found that since Defendant had failed in its duty to file a complete and accurate transcript, the
Court could not determine whether the decision of the Administrative Law Judge (“ALJ”) was
supported by substantial evidence. Therefore, the Court remanded this case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) to clarify the record, specifically by removing
pages identified as Exhibit 19F that pertained to a different individual, and by providing a
complete and accurate copy of Exhibit 11F.
Plaintiff’s counsel now seeks fees in the amount of $8,266.12 based on 43.6 hours of work
spent on this case before the Court. Defendant opposes counsel’s request, arguing that its position
in opposing Plaintiff’s appeal of the Commissioner’s denial of benefits was substantially justified.
In the alternative, Defendant argues that, even if fees under the EAJA are warranted, the fees
sought by Plaintiff’s counsel are excessive. The Court disagrees with Defendant and finds that its
position was not substantially justified and that the amount of fees sought is reasonable.
Pursuant to the EAJA, “a court shall award to a prevailing party . . . fees and other
expenses . . . incurred by that party . . . unless the court finds that the position of the United States
was substantially justified or that special conditions make an award unjust.” 28 U.S.C. §

2

2412(d)(1)(A).1 This means that fees can be ordered under the EAJA unless the government’s
position “has a reasonable basis in both law and fact.” Williams v. Astrue, 600 F.3d 299, 302 (3d
Cir. 2009) (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993)). It
is Defendant’s burden to establish that its position: (1) had a reasonable basis in truth for the facts
alleged; (2) had a reasonable basis in law for the theory propounded; and (3) had a reasonable
connection between the facts alleged and the legal theory advanced. See id. However, “a court
cannot assume that the government’s position was not substantially justified simply because the
government lost on the merits.” Id. (quoting Morgan v. Perry, 142 F.3d 670, 685 (3d Cir. 1998)).
Indeed, “a party’s success on a single claim will rarely be dispositive of whether the
government’s overall position was substantially justified.” Id. The Court must look at the totality
of the circumstances in making its decision. See id. (citing Roanoke River Basin Assoc. v.
Hudson, 991 F.2d 132, 139 (4th Cir. 1993)).
Here, Defendant argues that it was justified in opposing Plaintiff’s appeal because it was
justified in defending what the Court itself described as the ALJ’s “thorough and well-written”
decision, regardless of the clerical errors affecting the transcript before the Court. While the
Court agrees that the ALJ did a fine job, the reason for the remand had nothing to do with his July
22, 2011 decision. As the parties are aware, the Court, on multiple occasions, informed
Defendant of flaws in the transcript and Defendant, on each of these multiple occasions, failed to
correct these shortcomings adequately. This failure led to several pages on which the ALJ
expressly relied, and to which Defendant cited in supporting his decision, not being available for
the Court to review. Left without a sufficiently trustworthy transcript, and having tried several
1

A party who obtains an order remanding her case under sentence four of Section 405(g) to
the Commissioner is a prevailing party. See Shalala v. Schaeffer, 509 U.S. 292, 300-02 (1993).
The parties here do not dispute that Plaintiff is, in fact, a prevailing party.
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times to remedy the situation, the Court remanded the matter and entered final judgment on
September 29, 2014, and, in its remand order, explained the nature of the problem with the record
at great length. Therefore, the problem here was not that Defendant was necessarily unjustified in
defending the ALJ’s decision, it is that it failed to provide the Court with the materials it needed
to review this decision.
Pursuant to Section 405(g), when judicial review of a social security decision is sought,
the Commissioner must file with its answer a certified copy of the transcript of the record
including the evidence upon which the decision being challenged was based. When material
information from the administrative proceedings is omitted from the transcript when filed before
the district court, it prevents meaningful judicial review and warrants a remand. See Hippensteel
v. Soc. Sec. Admin., 302 F. Supp. 2d 382 (M.D. Pa. 2001). Defendant certainly was not
substantially justified in failing to adhere to its duty to provide an adequate record to the Court,
and any claim that this error was a reasonable clerical error is belied by the multiple failures to
remedy the problem as requested. Likewise, continuing to defend the case despite notice of the
inadequate record was not justified. Moreover, although Plaintiff’s counsel misinterpreted the
nature of the error, the problems with the transcript did underlie the grounds on which Plaintiff
sought remand. Accordingly, the Court finds that Defendant’s opposition to remand was not
substantially justified, and that an award of fees pursuant to the EAJA is warranted.
The Court also disagrees that the fees requested by Plaintiff are unreasonable. Defendant
is correct, of course, that the Court must determine that the fees sought under the EAJA are
reasonable and may adjust the award accordingly. See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Commissioner, I.N.S. v. Jean, 496 U.S. 154, 161 (1990); Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990). The record here demonstrates an unusually large administrative
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record of over 1,500 pages and a persistent error in the transcript which led to a great deal of
confusion on the part of all parties. Given the size of the record and the need for Plaintiff’s
counsel to interpret a flawed transcript, the amount of time requested, 37.6 hours, cannot be said
to be unreasonable.2 Indeed, for the most part, Defendant merely provides its own somewhat
arbitrary opinions as to how much time would have been reasonable for the various tasks
performed by Plaintiff’s counsel and/or cites to other unrelated cases in which courts had reduced
the amount of fees requested by this particular firm. The Court finds no merit in these vague
assertions. Moreover, the size of the transcript certainly warranted the relatively small amount of
time spent by Plaintiff’s counsel in reviewing the case prior to the actual filing of the complaint.
Finally, Defendant’s actions after the request for fees was filed, i.e., seeking to re-open the case
and opposing an award of fees, justify the 6 hours claimed by Plaintiff to review Defendant’s
Rule 60(b) Motion (Doc. No. 35), and its Brief in Opposition to Plaintiff’s Motion for Attorney’s
Fees (Doc. No. 31), and to respond to these filings. The Court notes that Plaintiff prevailed in
opposing Defendant’s Rule 60(b) motion and in seeking EAJA fees. These additional six hours
bring the total amount of EAJA-compensable time to 43.6 hours. The Court finds this to be
reasonable under the circumstances of this case.

2

The Court notes that Defendant does not challenge Plaintiff’s requested hourly rate of
$189.59. Section 2412(d)(2)(A) provides that attorney fees shall not be awarded in excess of
$125.00 per hour unless the Court determines that a cost of living adjustment should apply or that
a special factor justifies a higher fee. Applying the consumer price index shows that a rate of
$189.59 per hour appears to be reasonable. See Garcia v. Schweiker, 829 F.2d 396, 401 (3d Cir.
1987) (holding that the consumer price index may be used to determine cost of living adjustments
under the EAJA).
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Accordingly, the Court hereby orders that $8,266.12 be paid directly to Plaintiff in this
matter for attorney fees in this case as set forth herein.

s/Alan N. Bloch
United States District Judge

ecf:

Counsel of record

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