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Harvey v. Berryhill

United States District Court, District of Columbia

June 13, 2017

OMAR HARVEY, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          ROSEMARY M. COLLYER United States District Judge

         In 2013, Omar Harvey sued the Acting Commissioner of Social Security under 42 U.S.C. § 405(g) seeking remand for an administrative hearing on his eligibility for benefits. Mr. Harvey's claims survived a motion to dismiss and, on a motion by the Government, this Court remanded for administrative proceedings under sentence six of 42 U.S.C. § 405(g), retaining jurisdiction. Mr. Harvey's case was reviewed by the Commissioner of the Social Security Administration who determined that he was entitled to benefits. The parties jointly moved for the Court to enter judgment in favor of Mr. Harvey based on the finding of the Administrative Law Judge (ALJ) on remand. The Court denied that request and instead dismissed the case as moot. Counsel for Mr. Harvey now move for fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), which the Court will award.

         I. BACKGROUND

         The background concerning Mr. Harvey's dispute with the Social Security Administration (SSA) and failure by the Commissioner to review his application for fees properly is discussed at length in the Court's decision on the motion to dismiss and will not be repeated here. See Harvey v. Colvin, No. 13-1957, 2015 WL 4078223 (D.D.C. July 1, 2015).

         Following the Court's denial of the Commissioner's motion to dismiss, the Commissioner moved for remand under sentence six of the Social Security Act § 405(g), which permits the Court, “on motion of the Commissioner made for good cause shown before she files her answer, [to] remand the case to the Commissioner for further action.” 42 U.S.C. § 405(g); see also Melkonyan v. Sullivan, 501 U.S. 89, 101 n.2 (1991); Shalala v. Schaefer, 113 S.Ct. 2625, 2629 n.2 (1993). The Court granted the Commissioner's request for remand and remanded the case to the Commissioner to consider Mr. Harvey's petition for benefits fully. See Order on Remand [Dkt. 30].

         At the same time, the Court required that an administrative hearing be held no later than two months after remand and notice of a decision be given to the Court no later than 14 days after it issued. Id. On January 26, 2016, the parties informed the Court that the ALJ “issued a partially favorable decision . . . on Plaintiff's claim for benefits” and, after the time for appeal had lapsed, the parties would move to dismiss the case. Joint Status Report [Dkt. 31]. On April 26, 2016, the parties filed a Joint Motion for Entry of Final Judgment in Mr. Harvey's favor. See Joint Mot. for Entry of Final Judgment [Dkt. 35]. In the Joint Motion the parties requested that “[b]ecause Mr. Harvey obtained a favorable decision from the Commissioner on remand and because he has now received an Amended Notice of Award calculating benefits with respect to the correct application date . . . Judgment be entered in Mr. Harvey's favor.” Id. at 3.

         The Court declined to enter judgment in the case, instead dismissing the case as moot because Mr. Harvey received the remedy he requested, an administrative hearing. See Order on Judgment [Dkt. 36]. The Court noted that Mr. Harvey was successful on remand and that the parties had originally informed the Court they would be seeking dismissal based on the successful result. The Court also specified that “[t]his ruling does not prejudice Mr. Harvey's ability to request attorneys' fees, ” id. at 2, and specifically noted that “[t]he D.C. Circuit has several times held that ‘the subsequent mootness of a case does not necessarily alter the plaintiffs' status as prevailing parties.'” Id. at 3 n.1 (quoting Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 947 (D.C. Cir. 2005)).

         On May 25, 2016, Mr. Harvey submitted an Application for Award of Attorneys' Fees, see Fee App. [Dkt. 38], with a supporting Memorandum. See Mem. in Support of Fee App. [Dkt. 39] (Fee Mem.). The Commissioner opposed the award of fees, see Opp'n [Dkt. 40]; and Mr. Harvey replied. See Reply [Dkt. 41]. The motion is ripe for review.


         The EAJA provides that:

[e]xcept 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). Thus the test for eligibility of a fee award requires a court to find (1) the claimant prevailed, (2) costs were incurred, (3) the government's position was not “substantially justified, ” and (4) no special circumstance makes the award unjust. See INS v. Jean, 496 U.S. 154, 158 (1990).

         To be a prevailing party, the claimant must show “a court-ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 604 (2001). A prevailing party is “one who has been awarded some relief by the court.” Id. at 603 (adding that the party must “receive at least some relief on the merits”). However, a party is not prevailing “merely by virtue of having ‘acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “judicial relief.”'” Thomas v. Nat'l Science Found., 330 F.3d 486, 493 (D.C. Cir. 2003) (quoting Buckhannon, 532 U.S. at 606). The party must have received at least some of the relief that was sought. See Id. Subsequent mootness of the case or issue does not necessarily alter a plaintiff's status as a prevailing party, if the relief granted was “concrete and could not be reversed despite a subsequent finding of mootness.” Id. (noting that an injunction was sufficient to show prevailing party status because it “gave the plaintiffs the precise relief that they had sought”); see also Nat'l Black Police Ass'n v. D.C. Bd. of Elections & Ethics, 168 F.3d 525, 528 (D.C. Cir. 1999); Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C. Cir. 1986). Therefore, final judgment on the merits is not necessary to qualify as a “prevailing party.” Select Milk Producers, 400 F.3d at 945 (“Although Buckhannon decisively rejected the ‘catalyst theory, ' the Court clearly did not adopt a rule that plaintiffs could only be deemed ‘prevailing parties' for fee-shifting purposes if they obtained a final judgment on the merits of a suit.”). There must be “an enforceable alteration of the legal relationship of the parties.” Buckhannon, 532 U.S. at 622.

         If a court finds that a plaintiff prevailed, the burden shifts to the government to show its position was substantially justified. See Lundin v. Mecham, 980 F.2d 1450, 1459 (D.C. Cir. 1992). A position is substantially justified if it is “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). While no arguments that are frivolous, foolish, egregious, or extreme are considered substantially justified, not all arguments that are not frivolous, foolish, egregious, or extreme are substantially justified. See Halverson v. Slater, 206 F.3d 1205, 1210 (D.C. Cir. 2000).

         The Court also notes that on a sentence six remand under 42 U.S.C. § 405(g), the claimant is entitled to attorneys' fees for the district court litigation and the remanded proceeding if the claimant prevails on remand. See Outlaw v. Chater, 921 F.Supp. 13, 16 (D.D.C. 1996) (finding counsel is not entitled to fees for work done before the SSA prior to filing the Complaint or for work done during remand to the SSA if remanded under sentence four of 42 U.S.C. § 405(g)); see also Marshall v. Comm'r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006) (finding attorneys' fees are available for counsel on remand under sentence six of § 405(g)). Remanding on sentence six alone is not sufficient to make the claimant a prevailing party, but “the result of subsequent administrative proceedings is sufficient to confer prevailing party status upon that same litigant.” Marshall, 444 F.3d at 842; see also Roberts v. Harvey, 468 F.Supp.2d 147, 149 (D.D.C. 2007) (quoting Envtl. Def. Fund, Inc. v. Reilly, 1 F.3d 1254, 1257 (D.C. Cir. 1993) (“Accordingly, in general, ‘a plaintiff that has obtained a remand for further proceedings is not at that point a “prevailing party” for the purpose of collecting its attorney's fee. Only if it ultimately succeeds on the merits of its underlying claim may it be awarded the attorney's fee it incurred in obtaining the remand.'”). When a case returns from sentence six remand with a decision favorable to the claimant, courts typically enter judgment in favor of the claimant and, at that point, the claimant is considered a prevailing party. See Marshall, 444 F.3d at 842; see also Jackson v. Chater, 99 F.3d 1086, 1097 (11th Cir. 1996) (“Because [claimant] succeeded on remand, at least in part on sentence-six grounds, judgment must be entered in his favor by the district court, and [claimant] will be a prevailing party under that judgment.”).

         III. ANALYSIS

         A. Eligibility for EAJA Attorneys' Fees Award

         1. ...

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