Gruettner v. Berryhill

Filing 23

ORDER signed by Magistrate Judge Nancy Joseph on 12/17/2018 granting 22 Motion for Attorney Fees. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NANCY JO GRUETTNER,
Plaintiff,
v.

Case No. 17-CV-799

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
Nancy Jo Gruettner sought judicial review pursuant to 42 U.S.C. § 405(g) of the denial of
her claim for a period of disability and disability insurance benefits, as well as disabled widow’s
benefits, under the Social Security Act, 42 U.S.C. § 405(g). On August 24, 2018, I ordered that the
case be remanded to the Commissioner pursuant to sentence four of § 405(g). Gruettner moves for
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
The deadline for the Commissioner to respond to Gruettner’s motion has now passed and the
Commissioner has not responded. See Civil L.R. 7(b). Under the EAJA, the prevailing party in
litigation against the federal government is entitled to attorney’s fees if: (1) the government’s
pre-litigation or litigation positions were not substantially justified; (2) no special circumstances exist
that would make an award unjust; and (3) the request is timely filed with the district court. 28 U.S.C.
§ 2412(d)(1)(A), (B); Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006).

Based on my decision reversing and remanding under sentence four, Gruettner is the
prevailing party in this case. See Shalala v. Schaefer, 509 U.S. 292, 301–02 (1993). And, Gruettner’s
application, filed within thirty days of when the judgment became final, is timely. See 28 U.S.C. §§
2412(d)(1)(B) and (d)(2)(G). See also Schaefer, 509 U.S. at 302 (finding that an EAJA application may
be filed until 30 days after a judgment becomes “not appealable”—i.e., 30 days after the time for
appeal has ended. Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil
case to which a federal officer is a party, the time for appeal does not end until 60 days after “entry
of judgment”).
The Commissioner bears the burden of demonstrating that the government’s position was
substantially justified or that special circumstances would make an award unjust. Wirth v. Barnhart,
325 F. Supp. 2d 911, 913 (E.D. Wis. 2004). Given it is the Commissioner’s burden of demonstrating
that the government’s position was substantially justified, and the Commissioner has not responded,
I have no basis to conclude that the government’s position was substantially justified. Nor has the
Commissioner challenged the reasonableness of the fee request. I find the requested fees to be
reasonable. Thus, I will grant Gruettner’s request for EAJA fees in the amount of $9,737.57.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the plaintiff’s motion for attorney’s
fees under the Equal Access to Justice Act (Docket # 22) is granted in the total amount of $9,737.57.
IT IS FURTHER ORDERED that these fees are awarded to Gruettner and not her attorney,
and can be offset to satisfy any pre-existing debt that the litigant owes the United States under Astrue
v. Ratliff, 130 S. Ct. 2521 (2010). If counsel for the parties can verify that Gruettner owes no

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preexisting debt subject to offset, Defendant will direct that the award be made payable to
Gruettner’s attorney pursuant to the EAJA assignment duly signed by Gruettner and counsel.

Dated at Milwaukee, Wisconsin this 17th day of December, 2018.

BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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