Opinion
CIVIL ACTION No. 5:23-CV-190
2023-11-22
Keith Richard HILL, Plaintiff, v. Kilolo KIJAKAZI, Commissioner of Social Security, Defendant.
Robert W. Gillikin, II, Robert W. Gillikin II LLC, Virginia Beach, VA, for Plaintiff. Christopher James Prezioso, U.S. Attorney's Office, Wheeling, WV, Jordan Vincent Palmer, DOJ, Civil Division, Wheeling, WV, for Defendant.
Robert W. Gillikin, II, Robert W. Gillikin II LLC, Virginia Beach, VA, for Plaintiff.
Christopher James Prezioso, U.S. Attorney's Office, Wheeling, WV, Jordan Vincent Palmer, DOJ, Civil Division, Wheeling, WV, for Defendant.
ORDER
JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE.
Presently pending before this Court is Plaintiff's Combined Motion & Brief for Attorney's Fees Pursuant to the Equal Access to Justice Act [Doc. 13], filed November 8, 2023. Defendant filed a Response [Doc. 14] on November 21, 2023. Plaintiff filed a Reply [Doc. 15] on November 22, 2023. This matter is now ripe for adjudication.
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), the plaintiff, by attorney Robert W. Gillikin, II, filed a motion for an award of attorney's fees in the amount of $7,920.00 and costs of $402.00. In support, plaintiff states the following:
1. An order remanding this case for a new hearing and decision pursuant to sentence four of 42 U.S.C. § 405(g) was entered by the Court.
2. Plaintiff is an individual whose net worth was and is less than two million dollars.
3. The Commissioner's position was not substantially justified.
4. SSA cannot prove the defense of special circumstances.
5. As a result of the Commissioner's position, Plaintiff's counsel was required to expend a number of hours in litigation.
[Doc. 13 at 1]. Defendant argues her position in this case was substantially justified, or in other words, reasonable.
I. Standard of Review
Title 28, United States Code, Section 2412(d)(1)(A) provides:
[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than 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.
A plaintiff is eligible for an award of fees under the EAJA when: (1) the plaintiff is the prevailing party in the underlying action; (2) the government's position was not substantially justified; (3) no special circumstances make an award unjust; and (4) a motion for an award of fees is submitted to the court within 30 days of final judgment. Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991).
The United States Court of Appeals for the Fourth Circuit has held that it is the government's burden to prove that its position in the underlying litigation was substantially justified. See id. (citing Lively v. Bowen, 858 F.2d 177, 180 (4th Cir. 1988)). The Government's position is substantially justified when it is "'justified in substance or in the main'-that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490, 565 (1988). The United States Supreme Court
has held that this definition "is no different from the 'reasonable basis both in law and fact' formulation adopted by ... the vast majority of ... Courts of Appeals that have addressed this issue." Id.
In social security cases, judicial review by a district court involves review of the administrative record and cross motions for summary judgment. See Smith v. Heckler, 739 F.2d 144, 147 (4th Cir. 1984).
Therefore, the government's position in the district court normally would be substantially justified if, as is usual, the United States Attorney does no more than rely on an arguably defensible administrative record. In such a situation, the EAJA would not require an award of attorneys' fees. Moreover, entry of summary judgment for the claimant raises no presumption that the government's position was not substantially justified.
Id. (citing Tyler Bus. Serv., Inc. v. Nat'l Labor Relations Bd., 695 F.2d 73, 75 (4th Cir. 1982)).
II. Discussion
As stated above, in order to be eligible for fees under EAJA, (1) the claimant was the prevailing party; (2) the government's position was not substantially justified; (3) no special circumstances make the award unjust; and (4) the claimant timely filed a petition supported by an itemized statement. Crawford, 935 F.2d at 656.
1. Prevailing Party
Plaintiff is a prevailing party because by obtaining a remand by the district court he succeeded on a significant issue in the litigation which achieved some of the benefit he sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
2. Timely Filing
This Court entered its Order remanding for additional findings on October 19, 2023. [Doc. 12]. Commissioner therefore has until December 18, 2023, to file a notice of appeal. See Fed. R. App. P. 4. The time for defendant to appeal has not lapsed. However, in defendant's response to the instant motion, defendant does not state she intends to file a notice of appeal. Thus, this Court will find that the Motion for attorney fees was timely filed.
Federal Rule of Appellate Procedure 4 states:
(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued in an official capacity....
The thirty day period under EAJA begins to run after the date when defendant did not appeal. Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).
3. Special Circumstances
Neither party argues, and the Court does not believe, that there are any special circumstances present that would make an award of fees unjust.
4. Substantial Justification
The issue here is whether Commissioner's position in opposing the awarding of benefits was substantially justified. In order to be substantially justified, Commissioner must rely on an arguably defensible administrative record. Crawford, 935 F.2d at 658. Commissioner maintains that she relied on a defensible administrative record in this case. A party who prevails in litigation against the United States is entitled to attorney's fees under EAJA if the government's position was not "substantially justified." Id. at 656. The Government
bears the burden of proving "substantial justification." Lively v. Bowen, 858 F.2d 177, 180 (4th Cir. 1988). The government can defeat a claim for attorney fees by showing that its position had a reasonable basis in both fact and law. Crawford, 935 F.2d at 656 (citing Pierce, 487 U.S. at 565, 108 S.Ct. 2541).
In this case, the Court concludes defendant's position was not substantially justified. Defendant did not file objections to Magistrate Judge Mazzone's Report and Recommendation, which courts have held is an important factor in evaluating any defense of substantial justification. See Johnson v. Astrue, 2010 WL 1463469, at *3 (S.D. Ohio Mar. 26, 2010) (failure to file objections to Magistrate Judge's Report and Recommendation, while not determinative, is a factor considered by the Court in deciding whether the Commissioner's position was substantially justified).
Moreover, defendant's argument that plaintiff did not prevail on every issue does not prove the presence of substantial justification. To the contrary, the United States Supreme Court has indicated that the EAJA statute favors treating the case "as an inclusive whole, rather than as atomized line-items." Commissioner, I.N.S. v. Jean, 496 U.S. 154, 162, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (emphasis added) (citing Sullivan v. Hudson, 490 U.S. 877, 888, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) (where administrative proceedings are "necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded.")).
Although this Court granted in part and denied in part Plaintiff's Motion for Summary Judgment, this Court ultimately remanded this case for additional findings as more fully described in the Report and Recommendation. Thus, overall, plaintiff was successful and defendant was not substantially justified.
III. Conclusion
This Court GRANTS Plaintiff's Combined Motion & Brief for Attorney's Fees Pursuant to the Equal Access to Justice Act [Doc. 13] in the amount of $7,920.00 in attorney fees and $402.00 in costs. It is also ORDERED that defendant pay the awarded fees directly to plaintiff's attorney, Robert W. Gillikin, II, of Robert W. Gillikin, II, LLC, 5520 Greenwich Rd., Suite 101, Virginia Beach, VA 23462.
It is so ORDERED.