United States District Court, E.D. Michigan, Northern Division
KELLY A. McPHEE, Plaintiff,
SOCIAL SECURITY COMMISSIONER, Defendant.
MAGISTRATE JUDGE'S OPINION AND ORDER ON MOTION
FOR ATTORNEY'S FEES UNDER THE EAJA (DOC. 19)
Patricia T. Morris, United States Magistrate
Introduction and Background
to the parties' consent under 28 U.S.C. § 636(c),
E.D. Mich. LR 72.1(b)(3), before the Court lies Plaintiff
Kelly A. McPhee's Motion for Fee under 28 U.S.C. §
2412, also known as the Equal Access to Justice Act
(“EAJA”). (Docs. 13, 19).
T. McFarland represents McPhee in the instant action. McPhee
applied for benefits under the Disability Insurance Benefits
program of Title II, 42 U.S.C. § 401 et seq.,
on April 18, 2011, alleging an onset date of December 17,
2010. (Tr. Tr. 115-16). She amended this date to September
15, 2008 at her hearing before Administrative Law Judge Ethel
Revels. (Tr. 37-71). McPhee's application was denied at
the initial level, then by the ALJ, and finally by the
Appeals Council. (Tr. 1-6, 17-23, 115-23). McPhee then filed
for judicial review of her claims on November 9, 2016. (Doc.
parties filed cross motions for summary judgment. (Docs. 12,
15). On November 26, 2017, the undersigned issued an opinion
and order remanding the instant matter to the Commissioner
for further proceedings pursuant to Sentence Four of 42
U.S.C. § 405(g). (Doc. 17-18). Thereafter, on December
12, 2017, McPhee filed the instant Motion for EAJA Fee. (Doc.
19). The Commissioner filed a response on December 18, 2017,
(Doc. 23). McPhee's Motion is therefore ready for
in Social Security benefits cases may collect fees through
two statutes: the EAJA, and 42 U.S.C. § 406. Fees
collected under the EAJA are paid by the Commissioner out of
its own coffers, whereas fees collected under § 406 are
paid out of the claimant's past due benefits. See
Scappino v. Comm'r of Soc. Sec. Admin., No.
1:12-CV-02694, 2015 WL 7756155, at *3 (N.D. Ohio Dec. 1,
2015). Fees may be collected under the EAJA only where the
Commissioner's position was not “substantially
justified, ” and thus operates to “discourage the
government from taking unjustified positions.”
Jones v. Schweiker, 565 F.Supp. 52, 55 (W.D. Mich.
Standard for Obtaining EAJA Fees
court renders a judgment favorable to a Social Security
claimant who was represented by counsel, the court may
allocate to that counsel a “reasonable” fee for
such representation. 28 U.S.C. § 2412(b). An application
for attorney's fees under the EAJA, including an itemized
justification for the amount requested, must be filed within
thirty days of final judgment in the action. 28 U.S.C. §
2412(d)(1)(B). In addition, the claimant must be an eligible
party, i.e. one “whose net worth did not
exceed $2, 000, 000 at the time the civil action was
filed.” 28 U.S.C. § 2412(d)(2)(B).
additional conditions must be met in order to recover
attorney's fees under the EAJA: (1) the claimant must be
a prevailing party; (2) the government's position must be
without substantial justification; and (3) there must be no
special circumstances which would warrant a denial of fees.
See Ratliff v. Commissioner of Soc. Sec., 465 F.
App'x 459, 460 (6th Cir. 2012); Marshall v.
Commissioner, 444 F.3d 837, 840 (6th Cir. 2006).
EAJA Fees Are Justified
outset, I note that McPhee obtained a Sentence Four remand,
making her a prevailing party in this matter, see Turner
v. Comm'r of Soc. Sec., 680 F.3d 721, 723 (6th Cir.
2012); (Docs. 17-18), and her Motion properly contains an
itemized list of the amount expended, (Doc. 19, Exs. 1-2).
The Commissioner does not dispute (thereby conceding) that
McPhee's net worth does not exceed two-million dollars,
and does not contend that any “special
circumstances” warrant denying fees in this case. (Doc.
23). McPhee thus satisfies all of the prerequisite criteria
for obtaining EAJA fees. Commissioner limits its challenge to
arguing its position in this matter-i.e., that
remand was not required-was substantially justified. The
allegation that the Commissioner's position was
substantially justified “imposes no proof burden on the
fee applicant, but is simply an allegation or pleading
requirement.” Scarborough v. Principi, 541
U.S. 401, 414-15 (2004). That allegation “functions to
shift the burden to the Government to prove that its position
in the underlying litigation ‘was substantially
Commissioner's “position” includes both its
underlying action and its litigation position. 28 U.S.C.
§§ 2412(d)(1)(A), (d)(2)(D); see also Noble v.
Barnhart, 230 F. App'x 517, 519 (6th Cir. 2007);
Delta Eng'g v. United States, 41 F.3d 259, 261
(6th Cir. 1994). In Pierce v. Underwood, the Supreme
Court characterized the descriptor “substantially
justified” as fitting for a government
“position” if “there is a ‘genuine
dispute' . . . or ‘if reasonable people could
differ as to [the appropriateness of the contested
action[.]'” 487 U.S. 552, 565 (1988) (internal
citations omitted). “To be ‘substantially
justified' means, of course, more than merely undeserving
of sanctions for frivolousness; that is assuredly not the
standard for Government litigation of which a reasonable
person would approve.” Id. Such language
implies the inverse as well-a position need not sink to the
depths of the nearly-sanctionable in order to lack
substantial justification. Under these standards, the failure
of the Commissioner to prevail in warding off remand does not
in and of itself constitute a lack of substantial
justification for its position. Accord, e.g.,
Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 498
(6th Cir. 2014) (“[T]he remand standard is not the
equivalent of a finding that the government's position
was not substantially justified.” (citing Couch v.
Sec'y of Health & Human Servs., 749 F.2d 359,
360 (6th Cir. 1984))). Nor does ...