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Hodge v. Berryhill

United States District Court, E.D. North Carolina, Western Division

February 27, 2017

TERESA HOUSTON HODGE, Plaintiff,
v.
NANCY A. BERRYHILL Acting Commissioner of Social Security Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on plaintiff's motion for attorney's fees (DE 37) under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Defendant has responded in opposition. In this posture the issues raised are ripe for ruling. For the following reasons, plaintiff's motion is denied.

         BACKGROUND

         Plaintiff commenced the instant matter on June 4, 2015, by motion to proceed in forma pauperis, with proposed complaint seeking judicial review of the denial of his application for supplemental security income. On August 31, 2015, defendant filed an answer seeking this court to affirm of the denial decision. The court's scheduling order directed plaintiff to file within 60 days “a motion for a judgment reversing or modifying the decision of the Commissioner, or remanding the case for a rehearing.” (DE 14 at 1). Plaintiff filed on October 9, 2015, a motion for judgment on the pleadings. After three extensions of time, defendant filed a cross-motion for judgment on the pleadings on February 22, 2016.

         Thereafter, the court referred the matter to U.S. Magistrate Judge Robert T. Numbers, II, for a memorandum and recommendation (“M&R”) on the cross-motions for judgment as a matter of law. On June 23, 2016, Judge Numbers entered M&R recommending that plaintiff's motion for judgment on the pleadings be granted, defendant's motion be denied, and the matter be remanded to the Commissioner for further consideration.

         Defendant filed objections to the M&R, upon leave of court out of time, and plaintiff responded. On August 4, 2016, the court granted plaintiff's motion for judgment on the pleadings, denied defendant's motion for judgment on the pleadings, adopting in part the reasoning in the M&R. The instant motion for attorney fees under the EAJA followed, supported by a memorandum of law and declaration of attorney time expended. Defendant opposes the motion on the basis that the Commissioner was substantially justified in its administrative and litigation positions.

         DISCUSSION

         A. Standard of Review

         The EAJA provides for an award of reasonable attorney's fees and expenses in accordance with the following provision:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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) (emphasis added). In addition, the statute provides:

A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses . . . . The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record . . . which is made in the civil action for which fees and other expenses are sought.

Id. § 2412(d)(1)(B) (emphasized). “‘[P]osition of the United States' means, 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.” Id. § 2412(d)(2)(D).

         Although the phrase “substantially justified” is not defined in the statue, the Supreme Court has interpreted the phrase to mean “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “[A] 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. The phrase, thus, does not connote “‘justified to a high degree, ' but rather ‘justified in substance or in the main.'” Id. at 565. As such, the standard is comparable to one that is “satisfied if there is ‘a genuine dispute, '” or “if reasonable people could differ as to the ...


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