United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Plaintiff James Anthony
Benvenuti's Motion for Attorney Fees and Costs
Pursuant to the Equal Access to Justice Act (the
“Motion”), (Doc. 26), filed January 23, 2017;
Defendant Commissioner Nancy A. Berryhill's
Defendant's Response in Objection to Plaintiff's
Motion and Memorandum Brief for Attorney Fees Pursuant to the
Equal Access to Justice Act (the
“Response”), (Doc. 27), filed January 31, 2017;
and Plaintiff's Reply in Support of Motion for
Attorney Fees and Costs Pursuant to the Equal Access to
Justice Act (the “Reply”), (Doc. 28), filed
February 17, 2017. Having reviewed the Motion, the Response,
the Reply, and relevant law, the Court finds that
Plaintiff's Motion should be GRANTED.
30, 2011, Mr. Benvenuti filed an application for disability
benefits with the Social Security Administration, alleging
disability commencing on July 7, 2006. (Administrative Record
(“AR”) 130, 134-142). His claim for benefits was
initially denied and again upon reconsideration. (AR 69-72,
76-78). A request for a hearing was filed, and a hearing was
held on April 1, 2014 before an Administrative Law Judge
(“ALJ”), who issued an unfavorable decision. (AR
30-57, 79-80). Mr. Benvenuti then filed an application for
review by the Appeals Council, which was summarily denied.
(AR 1-4, 13).
Mr. Benvenuti appealed to this Court, arguing that the ALJ
committed reversible, legal error by failing to: (1) apply
the correct legal standards at step two; (2) address evidence
demonstrating that Mr. Benvenuti's physical and mental
impairments are severe; and (3) develop the administrative
record. (Doc. 16 at 2). Because the ALJ did not evaluate the
entire medical record before making findings at step two, the
Court remanded the case to the Commissioner of the Social
Security Administration (the “Commissioner”) for
further proceedings in its Memorandum Opinion and
Order (the “Order”). (Doc. 24).
Benvenuti now moves this Court for attorney's fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (“EAJA”). (Doc. 26). He argues that an
award of fees is appropriate because he is the prevailing
party, his net worth is less than $2, 000, 000, and the
Commissioner's position in defending the action was not
substantially justified. (Doc. 26 at 1).
Commissioner responds that Mr. Benvenuti's request for
fees under EAJA should be denied based on the special
circumstances that the Court's remand was on an issue
that was not argued or briefed by Plaintiff and therefore not
defended by the Commissioner. (Doc. 27 at 1). Further, the
Commissioner argues that the Commissioner's position in
this case was substantially justified. (Doc. 27 at 1).
Standard of Review
to EAJA, a court is required to award attorney's fees if:
“(1) plaintiff is a ‘prevailing party'; (2)
the position of the United States was not
‘substantially justified'; and (3) there are no
special circumstances that make an award of fees
unjust.” Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007) (citing 28 U.S.C. §
2412(d)(1)(A)). Here, the Commissioner disputes whether her
position was substantially justified and argues that there
are special circumstances.
test for substantial justification in this circuit is one of
reasonableness in law and fact.” Hackett, 475
F.3d at 1172 (citing Gilbert v. Shalala, 45 F.3d
1391, 1394 (10th Cir. 1995)). In order to be substantially
justified, the government's position must be
“justified in substance or in the main-that is,
justified to a degree that could satisfy a reasonable
person.” Hadden v. Bowen, 851 F.2d 1266, 1267
(10th Cir. 1988) (citing Pierce v. Underwood, 487
U.S. 552, 565 (1988)). “The term position includes the
government's position both in the underlying agency
action and during any subsequent litigation.”
Hadden, 851 F.2d at 1267 (internal citations
an area of law is ‘unclear or in flux, it is more
likely that the government's position will be
substantially justified.'” Cherry v.
Barnhart, No. 04-5059, 125 Fed.Appx. 913, 916 (10th Cir.
Jan. 24, 2005) (unpublished) (citing Martinez v.
Sec'y of Health and Hum. Servs., 815 F.2d 1381, 1382
(10th Cir. 1987)). Indeed, “the government's
position can be justified even though it is not
correct.” Hackett, 475 F.3d at 1172 (citing
Pierce, 487 U.S. at 566 n.2). “The government
bears the burden of showing that its position was
substantially justified.” Gilbert, 45 F.3d at
1394 (internal citations omitted).
award may also be denied or reduced if “special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). Neither “special circumstances”
nor “unjust” are defined by the statute. However,
the Eighth Circuit notes that “equitable considerations
should inform a court's decision in this area.”
Walker v. Berryhill, No. CIV-15-1353-R, 2017 WL
782921, at *1 (W.D. Okla. Feb. 28, 2017) (unpublished)
(citing United States Dept. of Labor v. Rapid
Robert's Inc., 130 F.3d 345, 347 (8th Cir. 1997)).
Additionally, the Second Circuit has found that awards should
be reduced based on a plaintiff's reduced contribution in
the ultimate decision. Id. (citing Firstland
Int'l, Inc. v. INS, No. 06-1704-ag, 264 Fed.Appx.
22, 25 (2d. Cir. Jan. 25, 2008) (unpublished)
(“Plaintiffs' only contribution to their ultimate
victory in the underlying case was the supplemental brief
they submitted at this Court's request. We conclude that
an award of fees for any amount greater than the cost of
preparing that supplemental brief would be unjust.”)).
Court will first address the Commissioner's argument that
because the Court remanded the case on an argument the
Commissioner did not respond to, there are special
circumstances that would make an award of EAJA fees unjust.
Then, the ...