Opinion
Civil Action 18 Civ. 11543 (GBD) (SLC)
02-02-2022
CARMEN SERRANO, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY,[1] Defendant.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Before the Court is the motion of Plaintiff Carmen Serrano (“Serrano”) seeking attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (ECF No. 39 (the “Motion”)). Defendant Kilolo Kijakazi, Acting Commissioner of Social Security (the “Commissioner”) opposes the Motion. (ECF Nos. 43; 45). For the reasons set forth below, I respectfully recommend that the Motion be DENIED.
II. BACKGROUND
On August 22, 2014, Serrano filed an application for Supplemental Security Income (“SSI”) benefits, claiming that she had been unable to work since that date. (SSA Administrative Record (ECF No. 26 (“R.”) at 328-37)). Serrano alleged that her disability was due to “mental problems.” (R. 332, 340-50). On October 21, 2014, the Social Security Administration (“SSA”) denied Serrano's application, finding that she was not disabled. (R. 67-75). An Administrative Law Judge (“ALJ”) held hearings on December 8, 2016 and March 23, 2017. (R. 51-65, 34-45). On July 31, 2017, the ALJ issued a decision finding that Serrano was not disabled (R. 15-27 (the “ALJ Decision”), and on September 5, 2018, the SSA Appeals Council (the “Appeals Council”) denied Serrano's request for review of the ALJ Decision. (R. 1-5).
On December 10, 2018, Serrano filed a complaint in this Court. (ECF No. 2 (the “Complaint”)). On April 20, 2020, Serrano filed a motion for judgment on the pleadings (ECF No. 29 (“Serrano's MJP”), and on June 26, 2020, the Commissioner filed a cross-motion. (ECF No. 32 (the “Commissioner's MJP”)). In Serrano's MJP, she challenged the merits of the ALJ Decision's finding that she was not disabled, and, for the first time, argued that the ALJ was not properly appointed pursuant to the Appointments Clause of the United States Constitution. (ECF No. 29). On January 25, 2021, the Court issued a report and recommendation recommending that Serrano's MJP and the Commissioner's MJP each be granted in part and denied in part. (ECF No. 35 (the “R&R”)). As to the Appointments Clause challenge, the Court “agree[d] with the precedent holding that the failure to exhaust this challenge before the ALJ is not an impediment to raising it for the first time before this Court, but, because[] this question [was] pending before the Supreme Court and the Second Circuit, [] respectfully recommend[ed] that the Court refrain from ruling on the Appointments Clause challenge until after expected rulings from” those courts. (Id. at 24). As to Serrano's challenge to the merits of the ALJ Decision, the Court found that the ALJ Decision “applied the correct legal standards and was supported by substantial evidence,” and therefore, a remand was not appropriate on this alternate ground. (Id. at 24, 35).
On March 29, 2021, the Honorable George B. Daniels issued a memorandum decision and order adopting the R&R in part, granting Serrano's Motion, and denying the Commissioner's Motion. (ECF No. 37 (the “D&O”)). See Serrano v. Comm'r of Soc. Sec., No. 18 Civ. 11543 (GBD) (SLC), 2021 WL 1172478 (S.D.N.Y. Mar. 29, 2021). Specifically, Judge Daniels declined the R&R's recommendation to refrain from ruling on the Appointments Clause challenge, and instead agreed with the R&R's conclusion that Serrano “was not required to raise her Appointments Clause challenge at the ALJ level to preserve it for judicial review” and agreed with “the sound reasoning of the decisions [the R&R] cite[d] that [Serrano] ha[d] not forfeited this claim.” Id. at *2. Accordingly, Judge Daniels remanded the matter “for a new hearing before a different, properly appointed ALJ.” Id. On March 30, 2021, the Clerk of the Court entered judgment and remanded the matter to the agency. (ECF No. 38 (the “Judgment”)).
On March 30, 2021, Serrano filed a notice of appeal from the Judgment. (ECF No. 46). On January 12, 2022, the United States Court of Appeals for the Second Circuit issued a mandate dismissing Serrano's appeal. (ECF No. 48).
Separately, on June 18, 2021, Serrano filed the Motion seeking $8,525.20 in attorneys' fees under the EAJA, 28 U.S.C. § 2412(d). (ECF No. 39). As is relevant here, Serrano argued that she prevailed in this case because the Court remanded the case under sentence four of 42 U.S.C. § 405(g), and that the government's position in this case “was not substantially justified because: The ALJ violated the Appointments Clause of the United States Constitution.” (ECF No. 41).
On July 23, 2021, the Commissioner filed her opposition, arguing that Serrano did not prevail on the merits of her claim for benefits, and that “the Commissioner's position opposing remand on the Appointments Clause issue was substantially justified given that the issue of whether [Serrano] had forfeited her right to make an Appointments Clause argument by failing to raise the claim at the administrative level was a close question that was not resolved until after the Court ruled on this case.” (ECF No. 43 at 5-6 (the “Opposition”)).
On August 2, 2021, Serrano filed a response to the Opposition, arguing that her failure to prevail on the merits of her benefits claim did not establish that the Commissioner's position was substantially justified, and that the Commissioner's position on the Appointments Clause challenge was not substantially justified at the agency or the federal court levels. (ECF No. 44 at 3-11 (the “Reply”)). Serrano also increased her demand for attorneys' fees to $9,606.80, to include additional fees incurred briefing the EAJA issue. (Id. at 11).
III. DISCUSSION
A. Legal Standards
1. EAJA
Under the EAJA, a party is eligible to recover attorneys' fees when the party is the “prevailing party” in a civil action against the United States. The EAJA provides that:
Except as otherwise specifically provided by statute, 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.28 U.S.C. § 2412(d)(1)(A).
For purposes of the statute, a party is generally defined as:
(i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed . . .28 U.S.C. § 2412(d)(2)(B).
To be considered a “prevailing party,” a plaintiff “must achieve a material, judicially-sanctioned alteration of the legal relationship that favors it.” Independence Project, Inc. v. Ventresca Bros. Constr. Co. Inc., 397 F.Supp.3d 482, 490 (S.D.N.Y. 2019) (citing Perez v. Westchester Cnty. Dep't of Corr., 587 F.3d 143, 149 (2d Cir. 2009)).
Under the EAJA, attorneys' fees shall be awarded to a prevailing party “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). Examining this text, the Supreme Court in Pierce v. Underwood explained that “substantially justified” does not mean “justified to a high degree,” “but rather ‘justified in substance or in the main'- that is, justified to a degree that could satisfy a reasonable person. That is no different from the ‘reasonable basis both in law and fact' . . .” 487 U.S. 552, 565 (1988) (emphasis added). Under this standard, the United States' position “can be justified even though it is not correct, and . . . it can be substantially (i.e. for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Id. at 566 n.2; see also Kirkland v. R.R. Ret. Bd., 706 F.2d 99, 105 (2d Cir. 1983) (denying EAJA fee award where the government's action “although erroneous, was not so devoid of legal or factual support that a fee award is appropriate.”). A court must look to “not what the law is when the EAJA application is made, but rather whether the government was substantially justified in believing the law not to have foreclosed its position during the underlying litigation.” Commodity Futures Trading Comm'n v. Dunn, 169 F.3d 785, 787 (2d Cir. 1999).
The scope of the “position of the United States” includes both the position taken during the civil litigation 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 Commissioner, I.N.S. v. Jean, 496 U.S. 154, 159, n.7 (1990) (examining Section 2412(d)(2)(D) and determining that “only one threshold determination for the entire civil action is to be made,” as “Congress' emphasis on the underlying Government action supports a single evaluation of past conduct”). Although a civil lawsuit may have numerous phases, “the EAJA-like other fee-shifting statutes-favors treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161-62.
Courts have found the government's position not to be substantially justified when, for example, its decisions at the agency level contained significant errors of law and fact and failed to provide explanations of its rationale, see Gomez-Beleno v. Holder, 644 F.3d 139 (2d Cir. 2011), or the agency disregarded or mischaracterized evidence. Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79 (2d Cir. 2009); see also Chursov v. Miller, No. 18 Civ. 2886 (PKC), 2019 WL 5092007, at *1 (S.D.N.Y. Oct. 11, 2019) (finding that agency's actions were “arbitrary, capricious, and without foundation in the record,” and therefore not “substantially justified”); Hill v. Comm'r of Soc. Sec., No. 14 Civ. 9665 (GBD) (BCM), 2017 WL 5632813, at *4 (S.D.N.Y. July 27, 2017) (finding that Commissioner's position was not “substantially justified” where agency's administrative law judge “mischaracterize[ed] evidence”); Stroud v. Comm'r of Soc. Sec. Admin., No. 13 Civ. 3251 (AT) (JCF), 2015 WL 2114578, at *3 (S.D.N.Y. Mar. 24, 2015) (finding that Commissioner's position was not “substantially justified” where agency's commentary on applicable regulation “undermined” his position and supported the claimant's), adopted as modified, 2015 WL 2137697 (S.D.N.Y. May 6, 2015). Conversely, courts have found the government's position to be substantially justified given the previous circuit split on the Appointments Clause issue. See, e.g., Nelson S. v. Saul, No. 3:19-CV-1289 (SDV), 2021 WL 5768520, at *4-5 (D. Conn. Dec. 6, 2021) (finding that “Commissioner's position can be substantially justified when the state of the law was in such considerable flux”); Dewonkiee L.B. v. Comm'r of Soc. Sec., No. 5:19-CV-503 (DEP), 2021 WL 3417842, at *3 (N.D.N.Y. Aug. 5, 2021) (explaining that, given circuit split on Appointments Clause issue, court was “hard pressed to conclude that the government's position in this action . . . was not substantially justified”).
2. Appointments Clause
In Lucia v. Securities and Exchange Commission, the United States Supreme Court held that the ALJs at the Securities and Exchange Commission (“SEC”) were considered “inferior officers of the United States” for purposes of the Appointments Clause of the United States Constitution. U.S. __, 138 S.Ct. 2044 (June 21, 2018). Thus, “[u]nlike federal employees who can simply be hired by the SEC, the ALJs are required to be appointed by either the President, a court of law, or a department head (i.e., the SEC Commissioner).” Nelson S., 2021 WL 5768520, at *3. The Court held in Lucia “that the SEC's ALJs were not properly appointed because they had been selected by SEC staff members rather than by the SEC Commissioner[,]” and remanded the case for a new hearing before a properly-appointed ALJ. Id. (citing Lucia, 138 S.Ct. at 2044, 205556)). In explaining that “‘one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief,” Lucia, 138 S.Ct. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)), the Court “appeared to impose a timeliness requirement on any Appointments Clause challenge.” Nelson S., 2021 WL 5768520, at *3.
The Appointments Clause of the United States Constitution provides that the President of the United States:
[s]hall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.U.S. Const. Art. II § 2, cl. 2.
“There is no dispute that Lucia also implicated” the SSA's ALJs, Nelson S., 2021 WL 5768520, at *3, and “[o]n July 16, 2018, a few weeks after Lucia was decided, the SSA's Acting Commissioner preemptively addressed any Appointments Clause questions involving Social Security claims by rat[ifying] the appointments of all SSA ALJs and approving those appointments as her own.” Carr v. Saul, 141 S.Ct. at 1357 (internal quotations omitted) (citing 84 Fed.Reg. 9583 (2019)). Throughout the duration of the agency proceedings in Serrano's case and before the D&O was issued, however, the question whether Serrano was required to exhaust her Appointments Clause challenge at the agency level to preserve it for judicial review had been left open by the Supreme Court in Sims v. Apfel, 530 U.S. 103 (2000), and not yet been addressed by the Second Circuit. Montes v. Saul, 502 F.Supp.3d 832, 837 (S.D.N.Y. 2020).
At the time the D&O was issued in March 2021, the Supreme Court was expected to address whether an Appointments Clause challenge had to be exhausted at the agency level, “as it ha[d] granted certiorari in two cases pending this precise question: Carr v. Saul, No. 19-1442, 2020 WL 6551771 (Nov. 9, 2020) and Davis v. Saul, No. 20-105, 2020 WL 6551772 (Nov. 9, 2020).” Velez v. Saul, No. 19 Civ. 7291 (LJL) (JLC), 2020 WL 7638246, at *3 (S.D.N.Y. Dec. 23, 2020), aff'd 2021 WL 135700 (S.D.N.Y. Jan. 14, 2021). The issue was also then pending before the Second Circuit in Pichardo Suarez v. Berryhill, No. 20-1358. See Velez, 2020 WL 7638246 at *3.
Given the lack of controlling precedent from the Supreme Court and the Second Circuit at the time, in the R&R, the Court relied on several recent decisions in this District to support the conclusion that Serrano was not required to raise her Appointments Clause challenge at the ALJ level to preserve it for judicial review. See Velez, 2020 WL 7638246, aff'd, 2021 WL 135700 (S.D.N.Y. Jan. 14, 2021); San Filippo v. Berryhill, No. 18 Civ. 10156 (VSB) (KNF), 2020 WL 62039 (S.D.N.Y. Jan. 3, 2020), aff'd, 2020 WL 5229681 (Sept. 1, 2020); Montes, 502 F.Supp.3d 832; Croston v. Saul, No. 19 Civ. 6151 (GBD) (JLC), 2020 WL 7756214 (S.D.N.Y. Dec. 30, 2020). As noted above, in the D&O Judge Daniels agreed with this reasoning, held that Serrano was not required to exhaust her Appointments Clause challenge to preserve it for federal court review, and remanded for a new hearing before a properly-appointed ALJ. Serrano, 2021 WL 1172478, at *2.
On April 22, 2021, three weeks after the D&O, the Supreme Court issued its decision in Carr, “holding that a claimant can raise an Appointments Clause challenge with the district court, even if the issue was not raised at the agency level.” Nelson S., 2021 WL 5768520, at *3 (citing Carr, 141 S.Ct. at 1362). The Court held that “claimants are not required to exhaust certain issues in administrative proceedings to preserve them for judicial review, [and] claimants who raise those issues for the first time in federal court are not untimely in doing so.” Carr, 141 S.Ct. at 1362. In so holding, “Carr rejected the position taken by the [SSA] that there was a form of issue exhaustion that required Social Security claimants to challenge the ALJ's appointment administratively” to avoid waiver of a future challenge. Latoya A. v. Saul, No. 5:19-CV-581 (DJS), 2021 WL 1736869, at *2 (N.D.N.Y. May 3, 2021). Thereafter, the Second Circuit, following Carr, found a claimant's Appointments Clause challenge timely and remanded for a new hearing before a properly-appointed ALJ. See Streich v. Saul, 846 Fed.Appx. 80, 81 (2d Cir. May 5, 2021).
B. Application
The Commissioner argues that Serrano is not entitled to fees under the EAJA because she was not a prevailing party, and because the Commissioner's position regarding the Appointments Clause was substantially justified. (ECF No. 43 at 9-16). The Court addresses each argument in turn.
It is undisputed that Serrano's net worth did not exceed $2 million at the time this action was filed. (ECF No. 41 ¶ 3(a); see ECF No. 43). See 28 U.S.C. § 2412(d)(2)(B).
1. Prevailing Party
Serrano asserts that she is a prevailing party because the D&O remanded her “case under sentence [four] ¶ 42 U.S.C. § 405(g).” (ECF No. 41 ¶ 3(f)). The Commissioner argues that Serrano was not a prevailing party under the EAJA, because, on their merits of her benefits claim, the Court held in the R&R that the ALJ “applied the correct legal standards and her Decision was supported by substantial evidence.” (ECF Nos. 35 at 26; 43 at 9). Serrano responds that all of her claims “requested the same thing, reversal and remand to the Commissioner,” which was granted in the D&O, and therefore, she was the prevailing party. (ECF No. 44 at 4).
Sentence four states: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
The Court agrees with Serrano that she is a prevailing party under the EAJA because it is well-settled that “a party who wins a sentence-four remand order is a prevailing party.” Shalala v. Schaefer, 509 U.S. 292, 302 (1993); McKay v. Barnhart 327 F.Supp.2d 263, 267 (S.D.N.Y. 2004) (holding that “a plaintiff who is awarded a § 405(g) sentence-four remand is a prevailing party”). Accordingly, Serrano became the “prevailing party when [s]he succeeded in having [her] case remanded to the agency.” Torres v. Barnhart, No. 02 Civ. 9209 (AJP), 2007 WL 1810238, at *8 (S.D.N.Y. June 25, 2007).
Although the Court recommended in the R&R that, if “the Appointments Clause argument [were] rejected,” Judge Daniels could nevertheless conclude that the ALJ “applied the correct legal standards and her Decision was supported by substantial evidence,” (ECF No. 35 at 26), Judge Daniels did not reach this question in the D&O, and instead ruled in Serrano's favor on the Appointments Clause challenge and “remanded for a new hearing before a different, properly appointed ALJ.” Serrano, 2021 WL 1172478, at *2. The result in this case was remand to the Commissioner for further proceedings, and, accordingly, Serrano is a prevailing party under the EAJA.
2. Substantial Justification
In her Motion, Serrano asserts that the Commissioner's position was not substantially justified because “[t]he ALJ violated the Appointments Clause of the United States Constitution.” (ECF No. 41 ¶ 4). The Commissioner contends that her position before both the agency and this Court was substantially justified because “there [wa]s a genuine dispute” about the Appointments Clause challenge. (ECF No. 43 at 10 (quoting Pierce, 487 U.S. at 565, 566 n.2). In determining whether the Commissioner's position was substantially justified, the Court must consider the Commissioner's position both at the agency level and in this action. See 28 U.S.C. § 2412(d)(2)(D) (defining “position of the United States” as “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based”).
Serrano's argument is, essentially, that because it is now undisputed, after Carr, that the ALJ was unconstitutionally appointed at the time she presided over Serrano's hearing, the Commissioner's position could never have been substantially justified. (See ECF No. 44 at 4 (“It is hard to see how a decision by an unconstitutional decision-maker can ever be substantially justified.”)). “The fact that the government's position in the case was not accepted by the court, however, does not in and of itself dictate a finding, or even raise a presumption, that the government's position was not substantially justified.” Jenny R.R. v. Comm'r of Soc. Sec., No. 5:18-CV-1451 (DEP), 2020 WL 4034839, at *3 (N.D.N.Y. July 17, 2020); see Scarborough v. Principi, 541 U.S. 401, 415 (2004) (“Congress did not, however, want the ‘substantially justified' standard to ‘be read to raise a presumption that the [g]overnment position was not substantially justified simply because it lost the case[.]”); Dewonkiee, 2021 WL 3417842, at *3 (rejecting argument that just because plaintiff “ultimately prevailed,” the government's position in the action was not substantially justified).
Serrano does not dispute that she never raised an Appointments Clause challenge before the ALJ or the Appeals Council. (See generally ECF No. 26). The Court does not accept Serrano's suggestion that the Commissioner was required to challenge the ALJ's appointment sua sponte; rather, given Serrano's failure to raise the issue, the Commissioner was not required to take a position on the issue during the agency proceedings. See Lenz v. Saul, No. 19 CV 489, 2021 WL 2515167 at *2-3 (W.D. Pa. June 18, 2021) (holding that Commissioner did not act unreasonably in not raising Appointments Clause issue sua sponte where plaintiff failed to raise it); Rich v. Comm'r of Soc. Sec., 477 F.Supp.3d 388, 394 (E.D. Pa. 2020) (holding that Commissioner did not have an obligation to raise Appointments Clause issue sua sponte). In addition, because the ALJ issued her Decision on July 31, 2017, (R. 15-27), almost a year before the Supreme Court's holding in Lucia, the Court could “not expect nor require the Commissioner to predict how the judiciary will interpret the Constitution in conducting administrative proceedings among varied interpretations.” Rich, 477 F.Supp.3d at 394. Accordingly, because Serrano did not raise the Appointment Clause challenge at the agency level, and the Commissioner did not have an obligation to raise the issue sua sponte, the Court finds that the Commissioner's position at the agency level was substantially justified.
In the litigation before this Court, the Commissioner's position was that Serrano was required but failed to exhaust her Appointments Clause challenge before the agency, and that her failure to do so resulted in a waiver of the right to raise the issue in this action. (ECF No. 32 at 29-38). At the time the Commissioner advanced this position-June 2020-neither the Supreme Court nor the Second Circuit had ruled on the question whether an Appointment Clause challenge had to be raised before the ALJ to be preserved for federal court litigation. See Montes, 502 F.Supp.3d at 837-38. Although several district courts within the Second Circuit had held that a claimant was not required to raise an Appointments Clause challenge before the ALJ to preserve it for judicial review, (see R&R at 25), several other district courts had reached the opposite conclusion. See Nelson S., 2021 WL 5768520, at *4 (collecting cases); Jenny R.R., 2020 WL 4034839, at *3 (noting split within district courts in the Second Circuit, with “the distinct weight of authority favor[ing] a finding of an obligation to exhaust” an Appointments Clause issue before the agency before raising it in a district court proceeding). While the Second Circuit had not yet decided the issue, other Circuits were split on the exhaustion question. Compare Carr v. Comm'r, SSA, 961 F.3d 1267, 1275-76 (10th Cir. 2020) (holding exhaustion required), rev'd, 141 S.Ct. at 1357, and Davis v. Saul, 963 F.3d 790, 794-95 (8th Cir. 2020) (same), rev'd, 141 S.Ct. at 1357, with Cirko v. Comm'r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020) (holding exhaustion not required). It was not until after Judge Daniels issued the D&O that the Supreme Court issued its decision in Carr, resolving the Circuit split and holding that exhaustion at the agency level was not required. 141 S.Ct. at 1357. Indeed, immediately after Carr, the Commissioner changed positions in a case pending in the Second Circuit and agreed that administrative exhaustion was not required for Appointments clause challenges to be raised in federal court. See Streich, 846 Fed.Appx. at 81 (noting Commissioner's agreement that agency exhaustion was not required).
Based on the “considerable flux” in the state of the law on whether an Appointments Clause challenge had to be raised at the agency level to be preserved for federal court review, the Court finds that the Commissioner's position in this action was “substantially justified” under the EAJA. Nelson S., 2021 WL 5768520, at *5. The Court's conclusion is reinforced by the fact that “until the Supreme Court's essentially unanimous decision in [] Carr, the clear weight of authority among the district courts within the Second Circuit sided with the government's position in this case.” Dewonkiee, 2021 WL 3417842, at *3; Jenny R.R., 2020 WL 4034839, at *2 (“In view of the distinct split of authority regarding the exhaustion issue, and the fact that the position adopted by the government in this action appears to represent a majority view, I find that its position regarding this issue was substantially justified.”).
Accordingly, although Serrano was a prevailing party in this litigation, because the Commissioner's position was substantially justified, she is not entitled to recover attorneys' fees under the EAJA.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that Serrano's Motion be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). 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 response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).