United States District Court, W.D. Oklahoma
ORDER AWARDING ATTORNEY'S FEES
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff's Application for Award of
Attorney's Fees Under the Equal Access to Justice Act
[Doc. No. 30] and Supplemental Application for Award of
Attorney's Fees Under the Equal Access to Justice Act to
Include Fees for Legal Work on Fee Litigation [Doc. No. 33].
By the former, Plaintiff seeks an award of legal fees
pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in the amount of
$7, 251.60 to compensate for 34.5 hours of attorney time, and
4.2 hours of paralegal time expended on legal work in this
matter. By the latter, Plaintiff seeks an additional amount
of $392.00 to compensate for time expended by her attorney in
preparing a reply brief to address the Commissioner's
opposition to her fee request, discussed infra.
Plaintiff is the prevailing party in this action under the
Social Security Act, 42 U.S.C. § 405(g), by virtue of
the Judgment and Order of Remand [Doc. No. 27], reversing the
Commissioner's decision and remanding the matter for
further administrative proceedings consistent with the
magistrate judge's Report and Recommendation.
opposes Plaintiff's Application on the ground that the
Commissioner's position in this case was substantially
justified. “Under the EAJA, the government bears the
burden of showing that its position was substantially
justified.” Estate of Smith v. O'Halloran,
930 F.2d 1496, 1501 (10th Cir. 1991); see Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007)
(“Commissioner had the burden of proof to show that her
position was substantially justified”). To carry its
burden, “the government must prove that its case had a
reasonable basis in law and in fact. The term
‘substantially justified' has been defined as
‘justified . . . to a degree that could satisfy a
reasonable person.'” Estate of Smith, 930
F.2d at 1501 (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)) (citation omitted); see Hackett,
475 F.3d at 1172. Courts “consider the reasonableness
of the position the [Commissioner] took both in the
administrative proceedings and in the civil action Plaintiff
commenced to obtain benefits.” Gutierrez v.
Sullivan, 953 F.2d 579, 585 (10th Cir. 1992); see
Hackett, 475 F.3d at 1172.
consideration of the law, the case record, and the arguments
of the parties, the Court finds: (1) the Commissioner's
position in the case was not substantially justified; (2)
Plaintiff is entitled to an award of attorney's fees
under EAJA, 28 U.S.C. § 2412(d); and (3) the requested
amount is reasonable. In making these findings, the Court has
carefully considered Defendant's arguments to show that
“the Commissioner's position in this case was
reasonable because the record contained facts to support her
argument and was based on a reasonable interpretation of the
law.” See Def.'s Resp. Br. [Doc. No. 31]
at 3. The Court notes, however, that the Commissioner's
decision was reversed in this case because the magistrate
judge found Defendant's attempts to justify the
determination of the administrative law judge
(“ALJ”) consisted of “post-hoc
justifications that were not included in the ALJ's
decision.” See R. & R. [Doc. No. 25] at 6.
Defendant did not object to the Report and Recommendation,
and waived further judicial review of the magistrate
judge's findings on both factual and legal issues.
See 7/18/17 Order [Doc. No. 26]. Thus, the Court
rejects Defendant's view of her litigation position, and
finds that Defendant has failed to carry her burden to show
that her position was reasonable in law and in fact. The
Court further finds, based on Defendant's failure to file
any timely response to Plaintiff's Supplemental
Application as required by LCvR7.1(g), that Plaintiff should
be awarded an additional fee for time spent by her attorney
in litigating the EAJA fee issue.
THEREFORE ORDERED that Plaintiff's Application and
Supplemental Application [Doc. Nos. 30 & 33] are GRANTED.
The Court orders an award of attorney fees to Plaintiff
pursuant to the Equal Access to Justice Act in the amount of
$7, 643.60. Should an additional fee award under 42 U.S.C.
§ 406(b) subsequently be authorized, Plaintiff's
attorney shall refund the smaller amount to Plaintiff as
required by Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
 “EAJA fees may be awarded for
litigation over EAJA fees and the initial ‘finding that
the Government's position lacks substantial
justification, like the determination that a claimant is a
“prevailing party, ” operates as a one-time
threshold for fee eligibility.' The district court has
discretion to determine the amount of such a fee, or whether
to award one at all.” Sanders v. Astrue, 287
F. App'x ...