United States District Court, D. New Mexico
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Randall Greer’s
Opposed Motion for Attorney Fees Pursuant to the Equal Access
to Justice Act, with Memorandum in Support (Doc. 26), filed
February 13, 2019. Defendant filed a response in opposition
to Plaintiff’s motion on February 27, 2019, and
Plaintiff filed a reply in support of it on March 26, 2019.
(Docs. 27, 30.) The Court, having considered the pleadings,
the record, and the relevant law, and being otherwise fully
advised, FINDS that Plaintiff’s motion is well-taken
and should be GRANTED.
motion, Plaintiff seeks an award of attorney fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, in the amount of $6,
341.55. (Doc. 26 at 1.) The EAJA provides that a
fee award is required 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
parties dispute whether the Commissioner’s
“position” was “substantially
justified.” (Docs. 26, 27, 30.)
government’s “position, ” in this context,
refers to both the Commissioner’s position in the
federal civil case and the agency’s actions at the
administrative level. 28 U.S.C. § 2412(d)(2)(D); see
also Hackett, 475 F.3d at 1170 (finding that government
must justify both its position in underlying administrative
proceedings and in subsequent court litigation). “EAJA
fees generally should be awarded where the government's
underlying action was unreasonable even if the government
advanced a reasonable litigation position.”
Hackett, 475 F.3d at 1174 (quotation marks omitted).
The Commissioner bears the burden of proving that his
position was substantially justified. Hackett, 475
F.3d at 1172 (citing Gilbert v. Shalala, 45 F.3d
1391, 1394 (10th Cir. 1995)).
test for substantial justification is one of reasonableness
in law and fact. Gilbert, 45 F.3d at 1394. 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.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(quotation marks omitted). The government’s
“position can be justified even though it is not
correct.” Hackett, 475 F.3d at 1172 (quoting
Pierce, 487 U.S. at 565). Moreover, a lack of
substantial evidence on the merits does not necessarily mean
that the government’s position was not substantially
justified. Hadden v. Bowen, 851 F.2d 1266, 1269
(10th Cir. 1988).
deciding an EAJA fee motion, the Court must treat the case
“as an inclusive whole, rather than as atomized
line-items.” Hackett, 475 F.3d at 1174 n.1.
However, the Court should “focus on issues a party has
prevailed on in the district court.” Evans v.
Colvin, 640 Fed.App’x 731, 734 (10th Cir. 2016).
“[T]he fact that the Commissioner prevailed in the
district court on most issues” will not result in a
finding of substantial justification where the Commissioner
nevertheless “acted unreasonably in denying benefits at
the administrative level.” Hackett, 475 F.3d
at 1174 n.1.
raised four arguments for judicial review of the
Commissioner’s final decision denying his disability
application. Following a meticulous review of the
entire record, the Court remanded Mr. Greer’s action to
the Social Security Administration, finding that the ALJ
failed to resolve the apparent conflict between the
Dictionary of Occupational Titles
(“DOT”) and the testimony of the impartial
vocational expert (“VE”) regarding the reasoning
level requirements of the jobs the VE testified a
hypothetical individual with Plaintiff’s residual
functional capacity (“RFC”) could
perform. (Doc. 24 at 23-26.) The Court further
found that this error was not harmless. (Id. at
noted above, the Commissioner bears the burden of proving
that his position was substantially justified.
Hackett, 475 F.3d at 1172. Here, however, the
Commissioner limits his response to attempting to justify his
litigation position regarding whether the ALJ’s error
was harmless. (See generally Doc. 27.) In so doing,
he completely fails to address whether his litigation
position was legally and factually reasonable with respect to
the error on which this case turned, i.e., the
ALJ’s failure to resolve the apparent conflict between
the DOT and the VE’s testimony at the administrative
hearing. (Id.) He also fails to address whether the
ALJ acted reasonably, though erroneously, in this respect.
(Id.) By omitting any argument or analysis on these
issues, the Commissioner has failed to meet his burden of
proving that his position was substantially justified.
Commissioner does argue that, “even if the ALJ erred in
evaluating GED [reasoning] levels, the Commissioner had a
reasonable basis for advancing a harmless error argument in
litigation, ” citing Evans, 640
Fed.App’x at 731, for the proposition that “the
government’s position is substantially justified when
the government advances a reasonable litigation position that
cures unreasonable agency action.” (Doc. 27 at 4
(quotation marks and brackets omitted).) However, the
Commissioner neglects to acknowledge that he devoted about
three pages of his response to Plaintiff’s motion to
remand to his position that there was no apparent conflict
between the DOT and the VE’s testimony, and only one
paragraph to his “alternative” position that the
remaining job existed nationally in high enough numbers to
avoid triggering analysis under Trimiar v. Sullivan,
966 F.2d 1326 (10th Cir. 1992). (Doc. 21 at 17-21.) As
previously noted, EAJA “fees generally should be
awarded where the government's underlying action was
unreasonable even if the government advanced a reasonable
litigation position, ” Hackett, 475 F.3d at
1174; and, this rule seems particularly apt where, as here,
the Commissioner has failed to offer any justification for
the bulk of his litigation position on the relevant issues.
THEREFORE ORDERED THAT:
Plaintiff’s Opposed Motion for Attorney Fees Pursuant
to the Equal Access to Justice Act (Doc. 26) is GRANTED;
Plaintiff is awarded $6, 341.55 in attorney fees pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d);
and, 3. If Plaintiffs counsel receives attorney fees under
both the EAJA and 42 U.S.C. § 406(b) of the Social
Security Act, Plaintiffs counsel shall refund the smaller
award to Plaintiff pursuant to Weakley v. Bowen, 803
F.2d 575, 580 (10th Cir. 1986).