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United States District Court, M.D. Alabama, Northern DivisionMar 24, 2011
CIVIL ACTION NO. 2:09-CV-765-TFM. (M.D. Ala. Mar. 24, 2011)


March 24, 2011


Before the Court is Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act. See Doc. 19, filed Nov. 30, 2010. Plaintiff seeks an award of attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in the total amount of $1,843.75 to be paid directly to Plaintiff's counsel. Defendant contends that his position in this matter was "substantially justified," and that, as a result, the motion should be denied. See Doc. 21. Defendant also claims that, should attorney's fees be awarded, such award should be payable to Plaintiff rather than Plaintiff's counsel. Id.

Under the EAJA, the court is required to award attorney's fees to the prevailing plaintiff in a Social Security appeal "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); see also Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S.Ct. 1817, 1822, 152 L.Ed.2d 996 (2002) (quoting 28 U.S.C. § 2412(d)(1)(A)). "The government's position is substantially justified under the EAJA when it is justified to a degree that would satisfy a reasonable person — i.e. when it has a reasonable basis in both law and fact. The government bears the burden of showing that its position was substantially justified." United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (internal quotations and citations omitted).

The Court remanded this case to the Commissioner, hence Plaintiff was made a "prevailing party," upon entry of the Court's Memorandum Opinion and Order (Doc. 17) and Judgment (Doc. 18) of reversal. The Court ordered reversal and remand because the Administrative Law Judge (ALJ) "failed to properly consider the alleged side effects of Plaintiff's medications." See Doc. 17 at p. 14. Specifically, the ALJ gave no indication that he considered the side effects of Harris' medications on her ability to work. The responsibility for assessing a claimant's residual functional capacity ("RFC") belongs to the ALJ at the hearing level. 20 C.F.R. § 404.1546(c). The RFC determination must be "based on all the relevant evidence in [the] case record" including the medical evidence. See 20 C.F.R. § 404.1545(a) and (c) (emphasis added). The Court found that the ALJ did not properly consider all of the evidence before him because there was no reference to the side effect of Harris' prescription medications and that failure to address constitutes legal error requiring remand for further proceedings.

The Commissioner argues that the Plaintiff is not entitled to fees because his position was "substantially justified as to this issue because it had a reasonable basis in both fact and in law." See Doc. 21 at p. 3. In short, the Commissioner argues that the RFC finding was reasonable regardless of the fact that the Commissioner failed to address the medications' side effects and it can be reasonably implied from the ALJ's credibility analysis that he gave little weight to the Plaintiff's testimony as to the medication side effects. Though the Commissioner grudgingly admits that the ALJ did not specifically refer to or acknowledge the medications, he still maintains that the failure to address was substantially justified. See id. at p. 4. Basically, the Commissioner now attempts to clear the "substantial justification" hurdle by claiming that, notwithstanding any error, the ALJ's RFC determination was reasonable. The Court is somewhat baffled by the Commissioner's argument and finds that the Commissioner misses the point. The Court did not order reversal based on a finding that the ALJ's RFC determination was unreasonable. Rather, the Court ordered reversal because the ALJ failed in his duty to properly consider all the medical evidence in the record when determining the plaintiff's residual functional capacity. Specifically, he failed to comply with the legal requirement that he consider all the medical evidence when he failed to address the medications' side effects. Consequently, the Commissioner's position was not reasonable in law and not substantially justified. Therefore, the plaintiff is entitled to an award of fees under EAJA.

The Plaintiff seeks fees in the amount of $1,843.75. The Commissioner does not challenge any of the hours expended by counsel as unreasonable nor does he challenge the hourly rate. He does, however, contend that, in light of recent Supreme Court authority, see Astrue v. Ratliff, 130 S.Ct. 2521 (2010), any award of attorney's fees should be made payable to Plaintiff rather than his counsel. While Ratliff generally confirms that attorney's fee awards under the EAJA are payable to the "prevailing party" — the litigant — and are thus subject to offset any debt owed by such litigant to the United States, see id. at 2524, the opinion does not explicitly reject the practice of awarding fees to attorneys where the litigant has assigned the right to receive such fees directly. Indeed, the opinion recognizes that this practice continues "in cases where the plaintiff does not owe a debt to the government and assigns the right to receive the fees to the attorney." Id. at 2529 (internal quotations omitted).

However, despite the above, the Court has received no evidence of an assignment in this case. The application (Doc. 19) has three exhibits: (a) an affidavit from counsel that the invoice is true and correct, (b) a computation sheet showing the work done, rate, time spent, and the total cost, and (c) a copy of the Order granting Plaintiff's in forma pauperis application. See Doc. 19, exhibits. Nor does Plaintiff's reply contain a copy of an assignment agreement. See Doc. 23. Consequently, the Court cannot and will not pay the fees directly to the plaintiff's attorney. Instead, the fees are awarded directly to the Plaintiff.

Accordingly, it is ORDERED that the Application for Attorney Fees Under the Equal Access to Justice Act (Doc. 19) is GRANTED. Attorney fees and expenses in the amount of $1,843.75 shall be made payable to Plaintiff subject to any offset which may be applicable under 31 U.S.C. § 3716.

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4

Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).

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