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Cummins v. Berryhill

United States District Court, S.D. Texas, Houston Division

May 7, 2019

TYSON WAYNE CUMMINS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

          Dena Hanovice Palermo United States Magistrate Judge.

         Pending before the Court is Plaintiff's motion for attorney's fees. Pl.'s Mot., ECF No. 17.[1] The Commissioner of the Social Security Administration's (“the Commissioner”) did not file a response and Plaintiff represents that she does not oppose the motion. Id. at 6.[2] Based on the briefing, the evidence and the applicable law, the Court determines that Plaintiff's motion should be granted as modified below.

         I. PROCEDURAL OVERVIEW

         On December 20, 2018, Plaintiff filed a motion for summary judgment, requesting judicial review of the Commissioner's decision denying his application for disability insurance benefits. Pl.'s Mot., ECF No. 13. On January 25, 2019, the Commissioner filed a cross motion, seeking judgment in her favor. Def.'s Mot., ECF No. 14. On March 28, 2019, this Court entered a Memorandum & Order, granting Plaintiff's motion and remanding this case to the Administrative Law Judge (“ALJ”). M&O, ECF No. 15. On the same date, this Court entered a Final Judgment. Final Judg't, ECF No. 16.

         Plaintiff filed the current motion under the Equal Access to Justice Act (“EAJA”), 28 U.S.C § 241, seeking an award of his attorney's fees. Pl.'s Mot., ECF No. 17 at 2-3. Plaintiff submitted an itemized statement in support. ECF No. 17-1.

         II. ATTORNEY'S FEES UNDER THE EAJA

         The EAJA permits the recovery of attorney's fees in proceedings for judicial review of an agency's action. 28 U.S.C. § 2412(d)(1)(A). The purpose is to “ensure adequate representation of those who need it and to minimize the cost of this representation to taxpayers.” Day v. Comm'r, No. 6:16-CV-210, 2017 WL 4922048, at *1 (E.D. Tex. Oct. 31, 2017); see Murkeldove v. Astrue, et al., 635 F.3d 784, 793 (5th Cir. 2011) (purpose is to eliminate the financial disincentive for an average person to challenge unreasonable government actions). Under the EAJA, a party is entitled to recover attorney's fees from the United States when, at a minimum, the following four elements are met: (1) he is a prevailing party; (2) he timely files a fee application supported by an itemized statement; (3) the court finds the position of the government, in the administrative proceedings as well as before the Court, was not substantially justified; and (4) no special circumstances make an award unjust. Perales v. Casillas, 950 F.2d 1066, 1072 (5th Cir. 1992); Mesecher v. Berryhill, No. 4:15-CV-0859, 2017 WL 4417682, at *1 (N.D. Tex. Oct. 3, 2017); Benoit v. Astrue, No. H-07-2939, 2008 WL 3928026, at *1 (S.D. Tex. Aug. 27, 2008).

         III. PLAINTIFF SATISFIES THE EAJA REQUIREMENTS

         After careful review of the evidence and law, the Court finds that the Plaintiff has met the four requirements for an award of attorney's fees under the EAJA.

         Plaintiff secured a remand under sentence four of 42 U.S.C. § 405(g). When the district court remands a social security action under sentence four of § 405(g), [3]the claimant is a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 299-301 (1993); Day, 2017 WL 4922048, at *1. Thus, Plaintiff satisfied the first element.

         Plaintiff timely filed his motion for attorney's fees. The party seeking fees is required to submit an application to the court “within thirty days of final judgment in the action….” 28 U.S.C. § 2412(d)(1)(B). “The district court's judgment becomes final when it can no longer be appealed.” Murkeldove, 635 F.3d at 792.

Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil case to which a federal officer is a party, the time for appeal does not end until 60 days after “entry of judgment, ” and that a judgment is considered entered for purposes of the rule only if it has been ‘entered in compliance with Rul[e] 58 … of the Federal Rules of Civil Procedure.

Shalala, 509 U.S. at 303 (citations omitted). Rule 58 requires the district court to issue its judgment in a separate document. Id.

         In this case, the Court issued a final judgment on March 28, 2019; and it became final sixty days later on May 27, 2019. Final Judg't, ECF No. 13. Plaintiff had thirty days from May 27, 2019 to file his motion for attorney's fees. Because Plaintiff filed his ...


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