Bormes v. Colvin
ORDER granting 23 Motion for Attorney Fees. Signed by US Magistrate Judge Veronica L. Duffy on 11/17/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MARK R. BORMES,
ORDER ON MOTION FOR
DOCKET NO. 23
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
Pending is the plaintiff Mark R. Bormes’ motion for award of fees and
costs. Doc. 23. The government does not object to the motion and agrees to
pay plaintiff $7,055 in attorney fees pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d), as well as costs of $450 as authorized by 28
U.S.C. § 2412(a) and 1920. See Docket No. 24. The amounts are requested to
be paid directly to plaintiff’s attorney pursuant to his written agreement with
him. See Docket No. 23-2.
Plaintiff filed a claim for disability insurance and medical benefits. After
an Administrative Law Judge (ALJ) denied benefits and the Appeals Council
denied review, plaintiff appealed the ALJ’s decision to this court pursuant to 42
U.S.C. § 405(g). Plaintiff sought reversal of the commissioner’s final decision or
remand of the case for a further hearing, and an award of attorney’s fees under
the EAJA on the grounds that the Commissioner’s action was not substantially
justified. (Doc. 1). On October 18, 2017, the court entered its memorandum
opinion and order granting the plaintiff’s motion for summary judgment and
reversing and remanding the case to the commissioner pursuant to § 405(g),
Pursuant to EAJA, a court:
shall award to a prevailing party other than the United States fees
and other expenses, in addition to any costs awarded . . . ,
incurred by that party in any civil action (other that 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). Plaintiff timely filed his petition for attorney’s fees
pursuant to 28 U.S.C. § 2412(d)(1)(B) (within thirty days after final judgment).
Accordingly, plaintiff’s attorney is entitled to fees and expenses if (1) plaintiff
was the prevailing party and (2) the commissioner’s position was not
The Supreme Court has held that a social security claimant who obtains
a “sentence four” judgment reversing denial of disability benefits and requiring
further proceedings before the agency is a “prevailing party” for purposes of
EAJA. See Shalala v. Schaefer, 509 U.S. 292, 300-302 (1993). The court’s
October 18, 2017, order was entered pursuant to sentence four of § 405(g).
Upon entry of the October 18, 2017, order plaintiff became a prevailing party
entitled to seek attorney’s fees under the EAJA. Id.
The commissioner bears the burden of proving her position was
substantially justified. See Scarborough v. Principi, 541 U.S. 401, 414 (2004);
Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003). Subsequent to the order
for reversal and remand, the commissioner has submitted nothing that would
allow the court to determine the commissioner’s position was substantially
justified. The commissioner, therefore, has not borne her burden of proving
her position was substantially justified within the meaning of the EAJA. It is
noted, however, that the commissioner’s failure to contest the plaintiff’s motion
for attorney’s fees and costs is not construed by the court as a concession by
the commissioner on the issue of whether her position was substantially
The court must next determine whether the amount requested by
attorney Bormes is reasonable. See 28 U.S.C. § 2412(d)(2)(A). The
commissioner has not disputed that the fees and costs requested by plaintiff
are appropriate, and the court has carefully reviewed the time record submitted
by attorney Bormes and finds that the time expended and the hourly rates are
reasonable. The award of attorney fees shall constitute a complete release from
and bar to any claims plaintiff may have relating to EAJA fees and expenses
arising out of this social security appeal, but does not preclude plaintiff’s
counsel from seeking attorney fees under 42 U.S.C. § 406(b) of the Social
Security Act, subject to the offset provisions of the law.
Accordingly it is
ORDERED that plaintiff’s motion for award of fees and costs (Docket No.
23) is granted and the commissioner shall pay plaintiff’s counsel, subject to
any applicable offset, $7,055 in attorney fees pursuant to the Equal Access to
Justice Act and $450 for costs pursuant to 28 U.S.C. §§ 2412(a) and 1920.
DATED this 17th day of November, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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