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Ouellette v. Berryhill

United States District Court, D. New Hampshire

May 6, 2019

Kellie A. Ouellette, Claimant
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

          ORDER

          STEVEN J. MCAULIFFE UNITED STATES DISTRICT JUDGE.

         Kellie A. Ouellette seeks to recover attorneys' fees and expenses in the amount of $7, 592.55 pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, following a successful appeal from the denial of her application for Social Security benefits. The Acting Commissioner objects to that request. Claimant also seeks an award of fees pursuant to 42 U.S.C. § 406(b) in the amount of $13, 944. The Acting Commissioner does not oppose that request. Claimant's EAJA motion is denied, and claimant's 42 U.S.C. § 406(b) motion is granted.

         Background

         In July, 2017, after being denied benefits by the Social Security Administration, Ouellette entered into a contingent fee agreement with Jackson & MacNichol (hereinafter, “Counsel”), for representation in this court, pursuant to which claimant agreed:

To pay a fee equal to twenty five percent (25%) of the total amount of any past-due benefits awarded to Client, to include any dependents benefits, subject to the approval of said fee by the court. It is understood that this Contingent Fee is to be paid by the Client directly to the Attorney from any past-due benefits awarded on the basis of the Client's claim.

         Cl.'s § 406(b) Mot., Exh. 4, ¶ 3A. Ouellette further acknowledged that Counsel's services would ordinarily be billed at an hourly rate of more than $350. Pursuant to the agreement, Counsel agreed to take no fee if unsuccessful in securing an award of past-due benefits.

         On September 12, 2017, claimant appealed the Social Security Commissioner's denial of her claim for Disability Insurance and Supplemental Security Income Benefits under the Social Security Act (the “Act”). The court vacated the Commissioner's decision and remanded the case. On remand, claimant was awarded past-due benefits in the amount of $79, 776. Subsequently, the Social Security Administration approved a payment of $6, 000 to plaintiff's counsel for work on her behalf at the administrative level pursuant to 42 U.S.C. § 406(a).[1]

         Discussion

         1. EAJA Fees

         Ouellette has moved for $7, 592.55 in fees and expenses under the EAJA, based upon 42.7 hours of attorney work (billed at $198.15 per hour), and 2.9 hours of paralegal work (billed at $90 per hour). The Acting Commissioner opposes claimant's motion for EAJA fees, arguing that her litigation position was substantially justified. In the alternative, the Commissioner argues that the amount of fees requested is not reasonable.

         The Equal Access to Justice Act provides, in pertinent part, that:

Except as otherwise specifically provided by statute, the court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States or 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)(emphasis supplied). Accordingly, to recover fees under the EAJA, a party must not only prevail, but the court must also conclude that the government's position was not substantially justified. See McDonald v. Sec'y of Health & Human Servs., 884 F.2d 1468, 1469-70 (1st Cir. 1989) (“Under EAJA, . . . the government must foot the legal bills of its adversaries in civil cases . . . only if the adversaries ‘prevail' and if the government's position is not ‘substantially justified.'”).

         In opposing a party's request for fees under the EAJA, the government bears the burden of demonstrating that its position was substantially justified. See, e.g., Scarborough v. Principi,541 U.S. 401, 414 (2004) (“The burden of establishing ‘that the position of the United States was substantially justified,' § 2412(d)(1)(A) indicates and courts uniformly have recognized, must be shouldered by the Government.”). See also McDonald, 884 F.2d at 1475. The Supreme Court has explained that the government carries its burden by demonstrating that its position had “a reasonable basis in law and fact” and was justified “to a degree that could satisfy a reasonable person.” Pierce v. Underwood,487 U.S. 552, 565 and 566 n. 2 (1988). In other words, the government's ...


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