United States District Court, E.D. North Carolina, Western Division
LAURA G. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff's motion for
attorney's fees pursuant to the Equal Access to Justice
Act (âEAJAâ), 28 U.S.C. Â§ 2412(d). (DE 35). The issues raised
have been fully briefed, and in this posture are ripe for
ruling. For the reasons noted, plaintiff's motion for
attorney's fees is denied.
commenced the instant matter on October 27, 2017, by motion
to proceed in forma pauperis, with proposed complaint seeking
judicial review of the denial of her Title II application for
a period of disability and disability insurance benefits. On
January 12, 2018, defendant filed an answer seeking this
court to affirm of the denial decision. On January 17, 2018,
the court directed the parties to file motions for judgment
on the pleadings within 60 days of the court's order.
(Scheduling Order (DE 14) ¶¶ 2, 3). After several
extensions of time, plaintiff filed her motion on April 18,
2018, and defendant filed his motion on July 17, 2018.
Thereafter, the court referred the matter to U.S. Magistrate
Judge James E. Gates, for a memorandum and recommendation
(“M&R”) on the cross-motions for judgment as
a matter of law.
February 11, 2019, Judge Gates entered M&R recommending
that plaintiff's motion for judgment on the pleadings be
denied, defendant's motion be granted, and the matter be
dismissed. Shortly, after Judge Gates entered his M&R,
the Fourth Circuit designated Thomas v. Berryhill a
published opinion, making it binding precedent on this court.
See 916 F.3d 307, 309 (4th Cir. 2019). On February
25, 2019, plaintiff raised several objections for the court
consider in its de novo review of the M&R, including a
challenge under Thomas. Crediting plaintiff's
argument, the court granted plaintiff's motion for
judgment on the pleadings, denied defendant's motion for
judgment on the pleadings, and court remanded the case to
defendant for further consideration in light of
Thomas. The court did not reach the other issues
addressed in the M&R.
instant motion for attorney fees under the EAJA followed,
supported by a memorandum of law, fee contract, timesheet and
EAJA calculations, and consumer price index data. Defendant
opposes the motion on the bases that he was substantially
justified in his administrative and litigation positions, and
that awarding plaintiff attorney's fees in the instant
case would be unjust.
Standard of Review
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
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. §
the phrase “substantially justified” is not
defined in the statute, 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 ...