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Plaisance v. Saul

United States District Court, W.D. Louisiana, Lafayette Division

September 4, 2019

MARK ANTHONY PLAISANCE
v.
ANDREW SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

          JAMES JUDGE.

          RULING ON MOTION FOR ATTORNEYS' FEES

          PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.

         Currently pending before the court is the motion for attorneys' fees filed by the appellant, Mark Anthony Plaisance, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Rec. Doc. 21). Mr. Plaisance seeks to recover the sum of $8, 443.98 (representing 67.25 hours of attorney time at the rate of $125 per hour plus expenses of $37.73). The Commissioner of the Social Security Administration objected to certain amounts sought to be recovered. (Rec. Doc. 23). For the reasons set forth below, the undersigned finds that Mr. Plaisance's motion should be granted in part and denied in part.

         Background Information

         In November 2010, Mr. Plaisance filed applications for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”). After his applications were denied, Mr. Plaisance requested a hearing, which was held on February 28, 2012. On June 21, 2012, Administrative Law Judge Michael M. Wahlder issued a ruling[1] in which he found that Mr. Plaisance was not disabled. Mr. Plaisance appealed the ruling, in a proceeding styled Plaisance v. Social Security Administration, bearing Civil Action No. 6:13-cv-02365 on the docket of this court. This Court determined that certain of the ALJ's findings were not supported by substantial evidence and recommended that the matter be remanded for further administrative proceedings. On September 3, 2014, the district court adopted the report and recommendation and issued a judgment ordering remand.[2] The judgment expressly stated that the matter was being remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g).[3] A footnote in the judgment explained that a “fourth sentence remand constitutes a ‘final judgment' that triggers the filing period for an EAJA fee application.”[4] However, the record of Civil Action No. 6:13-cv-02365 contains no evidence that an application for EAJA fees was ever filed.

         Following remand, a hearing was held on October 14, 2015 before Administrative Law Judge Mary Gattuso. On December 17, 2015, Judge Gattuso issued a ruling in which she found that Mr. Plaisance was not disabled.[5] Mr. Plaisance appealed the ruling in a lawsuit styled Mark Plaisance v. Carolyn W. Colvin, Acting Commissioner of Social Security, bearing Civil Action No. 6:16-cv-00210 on the docket of this court. In response, the Commissioner moved for the ALJ's decision to be reversed and remanded.[6] On December 19, 2016, the court issued a judgment reversing and remanding Judge Gattuso's ruling pursuant to the fourth sentence of 42 U.S.C. § 405(g).[7] As noted above, a fourth sentence remand constitutes a final judgment that triggers the filing period for an EAJA fee application. But the record of Civil Action No. 6:16-cv-00210 contains no evidence that a petition for EAJA fees was ever filed.

         After the second remand, a hearing was held on July 12, 2017 before Administrative Law Judge Kim A. Fields. On November 15, 2017, Judge Fields issued a ruling, which again found that Mr. Plaisance was not disabled.[8] Mr. Plaisance appealed Judge Fields's ruling in this proceeding, Civil Action No. 6:18-cv-00033. This Court found that certain of the ALJ's findings were not supported by substantial evidence in the record and were reached without application of the proper legal standards. This Court consequently recommended that the ALJ's adverse ruling should be reversed and benefits should be paid to Mr. Plaisance.[9] In a judgment dated June 25, 2019, the district court adopted this Court's findings, reversed Judge Fields's decision, and remanded the matter to the Commissioner of Social Security with instructions to pay Mr. Plaisance DIB and SSI benefits beginning April 21, 2009.[10] The judgment expressly stated that the matter was being reversed and remanded pursuant to 42 U.S.C. § 405(g) and further stated that a fourth sentence remand constitutes a final judgment that triggers the filing period for an EAJA fee application.[11]

         Thus, in the lengthy history of Mr. Plaisance's application for Social Security benefits, there were three final decisions that triggered deadlines for seeking EAJA fees, but only one petition for the recovery of EAJA fees was filed - the instant motion. Mr. Plaisance now seeks to recover the fees and expenses incurred by his counsel between May 2014 and July 2019.

         Analysis

         A. The Award Of Attorneys' Fees Pursuant To The EAJA.

         The EAJA permits the recovery of attorneys' fees and expenses in proceedings for judicial review of an agency's action.[12] The purpose of the statute is “to ensure that there is sufficient representation for individuals who need it while minimizing the cost of attorneys' fees awards to the taxpayers”[13] or, in other words, “to eliminate for the average person the financial disincentive to challenge unreasonable government actions.”[14] A party is entitled to recover attorneys' fees pursuant to the EAJA if his net worth is less than $2 million;[15] he is the prevailing party; he filed a timely fee application; the government's position was not substantially justified; and no special circumstances make an award unjust.[16] An award of attorney's fees and expenses under the EAJA must also be reasonable.[17] In this case, the Commissioner contested only whether Mr. Plaisance's fee petition was timely filed.

         1. Mr. Plaisance's Net Worth.

         Mr. Plaisance filed his latest appeal in forma pauperis, [18] and he was found to be eligible for SSI benefits.[19] Furthermore, the Commissioner did not challenge Mr. Plaisance's representation that his net worth is less than $2 million. Accordingly, this Court finds that this requirement for an award of EAJA attorneys' fees is satisfied.

         2. Mr. Plaisance was the Prevailing Party.

         The Fifth Circuit has explained that “[a] party prevails by succeeding on ‘any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'”[20] In particular, a party who obtains reversal or remand of a Social Security appeal pursuant to the fourth sentence of § 405(g) qualifies as a prevailing party for purposes of fees under the EAJA.[21] Mr. Plaisance successfully appealed three adverse rulings of the Commissioner. Therefore, there is no dispute that he was the prevailing party with regard to all three appeals.

         3.The Commissioner's Opinion was not Substantially Justified.

         For Mr. Plaisance to recover attorneys' fees under the EAJA, the Commissioner's position in denying benefits must not have been “substantially justified.”[22] “The standard for determining whether the government's position is substantially justified is whether the position is ‘justified to a degree that could satisfy a reasonable person.'”[23] The burden is on the government to prove that its position was substantially justified.[24] In this case, the Commissioner did not argue that its position was substantially justified. Furthermore, the district judge remanded the case for the payment of benefits after adopting this Court's findings that, in certain respects, the ALJ's findings were not reached through the application of proper legal standards and were not supported by substantial evidence in the record. Consequently, this Court finds that the Commissioner failed to prove that its position in this case was substantially justified.

         4. There are No. Special Circumstances.

         The EAJA disqualifies an applicant from an award of attorneys' fees if there are special circumstances making an award unjust.[25] It is the government's burden to prove that such special circumstances exist.[26] Other than arguing that Mr. Plaisance's fee petition was not timely, the Commissioner did not object to his motion for attorneys' fees and, more particularly, did not articulate any special circumstances that would make an award of fees unjust in this case. This Court therefore finds that no special circumstances exist that would make an award of attorneys' fees unjust in this case.

         5. The Timeliness of the Appellant's Fee Application.

         Mr. Plaisance seeks to recover under the EAJA the attorneys' fees and expenses he incurred between May 2014 through July 2019. The Commissioner argued that Mr. Plaisance's motion was not timely with regard to the fees incurred in connection with his appeal of the first two adverse rulings. The Commissioner did not argue that Mr. Plaisance is not entitled to recover the attorneys' fees incurred in appealing the third adverse ruling.

         Under the EAJA, a prevailing party must submit an application for fees and expenses “within thirty days of final judgment in the action.”[27] For purposes of the EAJA, final judgment is defined as “a judgment that is final and not appealable. . . .”[28] Rule 4(a) of the Federal Rules of Appellate Procedure states that, in a civil case to which a federal officer is a party, the time for appeal does not end until sixty days after the entry of judgment. The EAJA's thirty-day time limit runs from the end of the period for appeal.[29] Therefore, when the Commissioner does not file an appeal within the sixty-day period for appeal of a court's ruling on a Social Security appellant's request for judicial review of an adverse decision, an applicant seeking fees pursuant to the EAJA has thirty days after the sixty-day period for appeal has run to submit a fee petition.[30] As the Fifth Circuit has explained: “In sentence four cases, the filing period [for fee applications under the EAJA] begins after the final judgment. . . is entered by the court and the appeal period has run, so that the judgment is no longer appealable.”[31] “Thus, a party has 30 days after this sixty-day time period to seek an EAJA award of fees. After the thirty-day time period, an EAJA award is no longer available.”[32] Indeed, the thirty-day time period is jurisdictional; therefore, the district court lacks jurisdiction to award attorneys' fees when the fee petition is filed more than thirty days after the judgment becomes final and non-appealable.[33]

         In support of his petition for attorneys' fees, Mr. Plaisance submitted a detailed statement from his attorney, showing time and expenses incurred while working on this matter from May 6, 2014 through July 25, 2019. Mr. Plaisance argued that his fee petition was timely because the June 25, 2019 judgment became final when the Commissioner failed to file objections to this Court's report and recommendation.[34] But the judgment was not issued until after the time allotted for objecting to the report and recommendation had already elapsed. Therefore, this argument lacks merit. Although Mr. Plaisance seeks to recover the fees and expenses that his counsel incurred during the entire 2014 to 2019 time period, his motion for attorneys' fees was filed too late with regard to his appeal of the first two unfavorable rulings.

         Mr. Plaisance appealed the first unfavorable administrative ruling to the district court, and the district court issued a favorable final judgment on September 3, 2014. The delay for appealing that judgment to the Fifth Circuit Court of Appeals expired sixty days later on November 2, 2014. The thirty-day time period for seeking the recovery of attorneys' fees under the EAJA ran from November 3, 2014 to December 3, 2014. But there is no evidence that a fee petition was filed in that time frame. Therefore, Mr. Plaisance cannot recover any attorneys' fees incurred in connection with his appeal of the district court's September 3, 2014 judgment.

         Mr. Plaisance appealed the second unfavorable administrative ruling to the district court, and the Commissioner sought remand of the ruling. The district court issued its second favorable final judgment on December 19, 2016. The delay for appealing that judgment to the Fifth Circuit Court of Appeals expired sixty days later on February 17, 2017. The thirty-day time period for seeking the recovery of attorneys' fees under the EAJA ran from February 18, 2017 to March 19, 2017. But there is no evidence that a fee petition was filed in that time frame. Therefore, Mr. Plaisance cannot recover any attorneys' fees incurred in connection with his appeal of the district court's December 19, 2016 judgment.

         By failing to file EAJA fee petitions within thirty days after the expiration of the appeal delays for the first two favorable judgments, Mr. Plaisance lost the opportunity to recover the fees incurred with regard to his appeals of the first two adverse rulings.[35]

         The district court issued a third favorable final judgment on June 25, 2019. The delay for appealing that judgment to the Fifth Circuit Court of Appeals did not expire until sixty days later - on August 24, 2019. The thirty-day time period for seeking the recovery of attorneys' fees under the EAJA ran from August 25, 2019 to September 23, 2019. Therefore, to be timely, Mr. Plaisance had to file his fee petition no earlier than August 24, 2019 and no later than September 23, 2019. But Mr. Plaisance filed his fee petition on July 25, 2019 (Rec. Doc. 21), without waiting ...


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