Opinion
19 Civ. 5474 (NSR) (AEK)
11-07-2022
STEVE LAWYER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on July 8, 2019. ECF No. 7. The order of reference was reassigned to the undersigned on October 16, 2020.
On June 12, 2019, Plaintiff Steve Lawyer filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”), which denied his application for Supplemental Security Income (“SSI”) benefits under the Social Security Act (the “Act”). ECF No. 1. Currently before the Court is Plaintiff's motion seeking an award of attorney's fees and other expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF Nos. 27-29. For the reasons set forth below, I respectfully recommend that Plaintiff's motion for attorney's fees be DENIED because Plaintiff agreed in the June 4, 2021 stipulation and order of remand that each party would bear its own attorney's fees, costs, and expenses.
BACKGROUND
Plaintiff filed his application for SSI benefits on January 9, 2015. Administrative Record (“AR”) 108. Following the denial of his claim by the Social Security Administration (“SSA”) on March 17, 2015, Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 119-35. An administrative hearing was held on July 13, 2017, and ALJ Elias Feuer issued a decision on May 2, 2018 finding that Plaintiff was not disabled within the meaning of the Act. AR 10-19, 45-106. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on April 17, 2019. AR 1-4. That made the ALJ's decision the final determination of the Commissioner.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 11.
Plaintiff commenced this action on June 12, 2019. ECF No. 1. Plaintiff filed his motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on January 22, 2020. ECF Nos. 15, 16. The Commissioner filed a cross-motion for judgment on the pleadings on May 4, 2020, ECF Nos. 19, 20, and Plaintiff filed a reply on May 22, 2020, ECF No. 21.
On April 22, 2021, while the cross-motions were pending, the Supreme Court issued its decision in Carr v. Saul, 141 S.Ct. 1352 (2021). In Carr, the Supreme Court held that applicants for Social Security disability benefits who had hearings conducted, and/or decisions issued, by an ALJ whose appointment was not in accordance with the Appointments Clause of the U.S. Constitution were not required to administratively exhaust their Appointments Clause challenges during proceedings before the SSA before raising such challenges for the first time in federal court. 141 S.Ct. at 1362.
On May 10, 2021, this Court issued an order requiring the parties to meet and confer regarding whether the case should be remanded to the SSA for a new hearing before a constitutionally appointed ALJ in accordance with Carr, and directing Plaintiff to submit a letter stating his position on the issue. ECF No. 22. Plaintiff submitted a letter on May 26, 2021 arguing that remand was required in light of the Carr decision. ECF No. 23. The Commissioner did not submit any response, and on June 2, 2021, the parties filed a proposed stipulation and order to remand the case to the SSA. ECF No. 24. Your Honor signed the stipulation and order (the “Stipulation”) on June 4, 2021, ECF No. 25, and judgment was entered the same day, ECF No. 26.
On August 31, 2021, Plaintiff filed a motion for attorney's fees pursuant to the EAJA, seeking $9,491.80 in attorney's fees and costs. ECF Nos. 27-29. The Commissioner filed her opposition on November 15, 2021. ECF Nos. 32-33. Plaintiff did not file a reply.
DISCUSSION
A. The EAJA
“The EAJA provides that ‘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 . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Criscitello v. Kijakazi, No. 21-1222-cv, 2022 WL 1510707, at *1 (2d Cir. May 13, 2022) (summary order) (quoting 28 U.S.C. § 2412(d)(1)(A)). Eligibility for an EAJA fee award in any civil action requires: “(1) that the claimant be a ‘prevailing party'; (2) that the government's position was not ‘substantially justified'; (3) that no ‘special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.” Comm'r, Immigr. & Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990) (quoting 28 U.S.C. § 2412(d)(1)(A)); see Gomez-Beleno v. Holder, 644 F.3d 139, 144 (2d Cir. 2011). The Commissioner bears the burden of demonstrating that her litigation position was substantially justified. Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 81 (2d Cir. 2009).
B. Analysis
There is no dispute that Plaintiff was the prevailing party in this matter and that his fee application was timely filed, and the Commissioner has not argued that there are any special circumstances here that would make an EAJA award unjust. Instead, the Commissioner contends that counsel waived his right to collect attorney's fees from the government by the terms of the Stipulation, which dictates that “[e]ach party will bear its own attorneys' fees, costs, and expenses.” ECF No. 32 at 3 (quoting Stipulation).
Under the EAJA, a plaintiff receiving a remand to an administrative agency is considered to be the prevailing party. See Shalala v. Schaefer, 509 U.S. 292, 300 (1993).
For purposes of the EAJA, the 30-day window within which to file a fee application begins to run after the expiration of the deadline for taking an appeal from the district court judgment. See Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). Here, the deadline to file an appeal was 60 days after the date the judgment was enteredi.e., August 3, 2021, see Fed. R. App. P. 4(a)(1)(B)(ii)-and Plaintiff filed his motion for attorney's fees within the 30-day period that followed.
“‘[A] stipulation is generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court.'” Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60, 65 (2d Cir. 2010) (quoting McCoy v. Feinman, 99 N.Y.2d 295, 302 (2002)). “Courts should not disturb a valid stipulation absent a showing of good cause such as fraud, collusion, mistake or duress, or unless the agreement is unconscionable or contrary to public policy, or unless it suggests an ambiguity indicating that the words did not fully and accurately represent the parties' agreement.” Id. at 65-66 (cleaned up). Furthermore, because “[a] stipulation is a contract between parties, . . . it is subject to the general principles governing the construction of a contract.” Doe v. State Univ. of N.Y. Purchase Coll., --- F.Supp.3d ---, 2022 WL 2972200, at *7 (S.D.N.Y. July 27, 2022) (cleaned up). Second Circuit case law supports applying the law of the forum state to interpret stipulations entered in federal court. See Torres v. Walker, 356 F.3d 238, 245-46 (2d Cir. 2004) (applying New York law to so-ordered stipulation of dismissal entered in the Northern District of New York); CAML Ghana Ltd. v. Westchester Res. Ltd., No. 13-cv-8124 (PAE), 2015 WL 405647, at *4 (S.D.N.Y. Jan. 30, 2015). “‘It is axiomatic under New York law . . . that the fundamental objective of contract interpretation is to give effect to the expressed intentions of the parties.'” Judd Burstein, P.C. v. Long, 180 F.Supp.3d 308, 311-12 (S.D.N.Y. 2016) (quoting Lockheed Martin Corp. v. Retail Holdings, N.V., 639 F.3d 63, 69 (2d Cir. 2011)). Moreover, “[i]t is well established that the parties' intentions are generally discerned from the four corners of the document itself.” Id. at 312. “Where the terms of an agreement are clear and unambiguous, the [c]ourt will not look beyond the ‘four corners' of the agreement ....” Roberts v. Doe 1, No. 14-cv-9174 (AJP), 2015 WL 670180, at *4 (S.D.N.Y. Feb. 17, 2015).
Here, there is no dispute that the Stipulation was negotiated and agreed to by Plaintiff's counsel and the Commissioner, the Court has no reason to believe the negotiations were not freely undertaken, and the Stipulation is a “properly subscribed writing.” See ECF No. 33 ¶¶ 47; Katel Ltd. Liab. Co., 607 F.3d at 65. Thus, the language of the Stipulation is binding on the parties.
With respect to the content of the Stipulation, its language is clear: “[e]ach party will bear its own attorneys' fees, costs, and expenses.” In other words, Plaintiff-not the United States- is responsible for paying Plaintiff's attorney's fees. Plaintiff has neither argued nor suggested that this term should not be enforced, nor has Plaintiff advocated for any interpretation of this term other than what the plain language indicates. Plaintiff also did not appeal any part of the so-ordered Stipulation, and the deadline to do so elapsed “60 days after entry of the judgment or order appealed from,” on August 3, 2021. Fed. R. App. P. 4(a)(1)(B)(ii).
Indeed, Plaintiff did not file a reply brief in further support of his motion for attorney's fees, and thus did not respond to this or any other argument advanced by the Commissioner.
Further, the language specifying that each party will bear its own fees, costs, and expenses is not out of the ordinary for a stipulation for remand in a Social Security appeal proceeding. Indeed, this Court readily located a number of recent Social Security cases from this District where such language was included in stipulations for remand-and in none of these cases did Plaintiff's counsel seek to recover EAJA fees. See, e.g., Cordero v. Comm'r of Soc. Sec., No. 20-cv-9134 (ALC) (S.D.N.Y. Sept. 27, 2021), ECF No. 17 (stipulating that “[e]ach party will bear its own attorneys' fees”); Bolden v. Comm'r of Soc. Sec., No. 18-cv-8349 (KMK) (AEK) (S.D.N.Y. July 27, 2021), ECF No. 35 (same); Lushaj v. Saul, No. 18-cv-6751 (KMK) (AEK) (S.D.N.Y. June 3, 2021), ECF No. 38 (same); Muniz v. Saul, No. 19-cv-1103 (AEK) (S.D.N.Y. June 2, 2021), ECF No. 30 (same).
Accordingly, based on the clear language of the Stipulation, and in the absence of any argument by Plaintiff as to why the agreed-upon language in the Stipulation should not govern this dispute, I respectfully recommend a finding that Plaintiff waived his right to request EAJA fees by entering into the Stipulation, and that Plaintiff's motion for attorney's fees therefore be DENIED.
The Commissioner also argues that even if the Stipulation does not include a waiver, Plaintiff is barred from collecting EAJA fees because the Commissioner's position “at all times” was substantially justified with respect to the Appointments Clause. ECF No. 32 at 4-5. The parties have not briefed this issue sufficiently, but because the motion can be resolved without reaching the issue of whether the Commissioner's position was substantially justified, this Court did not think it necessary to request supplemental briefing from the parties at this juncture. To the extent Plaintiff objects to this Report and Recommendation, however, and to the extent Your Honor determines that Plaintiff did not waive his right to collect EAJA fees by entering into to the Stipulation, I respectfully recommend that Your Honor order the parties to provide additional briefing on the substantial justification question. To show that the Commissioner's position was substantially justified, the Commissioner must “demonstrate that [her] position had a ‘reasonable basis both in law and fact.'” Ericksson, 557 F.3d at 81-82 (quoting Pierce v. Underwood, 487 U.S. 552, 563 (1988)). A court reviewing the “position of the United States” looks to both “the position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D); see Ericksson, 557 F.3d at 82. Here, neither party raised any arguments related to the Appointments Clause at the agency level. In federal court, the Commissioner did not respond to Plaintiff's Appointments Clause argument (ECF No. 23); instead, the Commissioner agreed to remand the case to the SSA in light of Carr. See ECF No. 25. The Commissioner's position to remain silent on the issue may have been substantially justified at the agency level. See Hubbard v. Comm'r of Soc. Sec., No. 19-cv-282 (AEK), 2022 WL 11266612, at *3 (S.D.N.Y. Oct. 19, 2022); Serrano v. Kijakazi, No. 18-cv-11543 (GBD) (SLC), 2022 WL 2531117, at *5-7 (S.D.N.Y. Feb. 2, 2022) (report and recommendation). But the reasonableness of the Commissioner's position before this Court is less clear. Notably, in all of the cases cited by Commissioner in her opposition brief here, see ECF No. 32 at 5, the Commissioner had actually argued in federal court submissions that SSA claimants were required to exhaust their Appointments Clause challenges at the administrative level. In contrast, the Commissioner made no such argument at any time in this case, and the Commissioner does not explain what “position” she was substantially justified in taking. Accordingly, should Your Honor reject the conclusion reached in this Report and Recommendation, further briefing on Commissioner's alternative argument would help to clarify the issue.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion for attorney's fees be DENIED.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
SO ORDERED.