Roberge v. SSA CV-93-418-SD 09/19/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kenneth Roberge
v. Civil No. 93-418-SD
Shirley Chater, Commissioner, Social Security Administration
O R D E R
Counsel for a successful social security disability claimant
has filed two motions seeking an award of attorney fees for his
services rendered in such case. This order addresses the issues
raised by said motions.
1. Motion for Award of Fees Pursuant to the Egual Access to
Justice Act (EAJA), document 17
a. Background
Claimant Kenneth Roberge initially alleged inability to work
since December 2, 1988, due to low back injuries sustained in a
motor vehicle accident. Although he raised an additional claim
of depression during a January 1993 administrative hearing, he
failed to provide evidence in support of that claim, nor did he
reguest assistance in obtaining such evidence through the Commissioner. His claim was denied by an Administrative Law
Judge (ALJ) and affirmed on review by the Appeals Council.
Claimant sought relief in this court, and the case was
ultimately remanded to the Commissioner.1 On remand, the record
was supplemented with new medical information concerning
plaintiff's psychological treatment since April of 1993. Counsel
also amended the date of onset of disability from December 2,
1988, to January 1, 1992.
The newly submitted medical evidence, in conjunction with
the previously submitted medical evidence concerning plaintiff's
back injuries, was considered by an ALJ.2 His decision concluded
that plaintiff was disabled, and benefits were awarded
accordingly.
b. Discussion
The motion, to which defendant objects (document 22), seeks
fees of $4,487.40 pursuant to the EAJA, 28 U.S.C. § 2412(d).
In relevant part, EAJA provides.
1The remand was had pursuant to sentence six of 42 U.S.C. § 405(g), which permits such remands "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . ."
2This ALJ was not the same ALJ who had previously reviewed and ruled on plaintiff's initial claim.
2 Except 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 . . . 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) (West Supp. 1992).
To be entitled to an award of fees under EAJA, alitigant
must first establish that he is a "prevailing party" as that
status is consistently used in other federal fee-shifting
statutes. Guglietti v. Secretary of Health and Human Services,
900 F.2d 397, 398 (1st Cir. 1990) (citations omitted).
Alternatively, a "prevailing party" may show that he has achieved
some of the benefits sought in bringing suit, a road not
successfully traveled in a case of a mere remand, id. at 400, or
because the lawsuit acts as a "catalyst" in prompting the
defendant to take action to meet plaintiff's claims, id. at 401.
As the circumstances of this case clearly comply with the latter
alternative, the court finds and rules that, for the purposes of
EAJA, Mr. Roberge is considered a "prevailing party".
The government here argues that its position was
substantially justified within the meaning of EAJA, and on this
issue the government bears the burden of proof by medium of a
3 preponderance of the evidence. United States v. One Parcel of
Real Property, 960 F.2d 200, 208 (1st Cir. 1992) (citing McDonald
v. Secretary of Health and Human Services, 884 F.2d 1468, 1475-76
(1st Cir. 1989)). To satisfy this burden, "'the government must
show that it had a reasonable basis for the facts alleged, that
it had a reasonable basis in law for the theories it advanced,
and that the former supported the latter.'" United States v. One
Parcel of Real Property, supra, 960 F.2d at 208 (guoting Sierra
Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.
1987)) .
The law is clear that "being wrong or losing is not the
standard. The government's agency and litigation positions, even
though incorrect and thus ultimately unsuccessful, can be
justified if they had a reasonable basis in law and fact." Morin
v. Secretary of Health and Human Services, 835 F. Supp. 1431,
1434 (D.N.H. 1993). The substantial justification reguirement of
EAJA properly focuses on the government misconduct giving rise to
the litigation. Id. (internal guotations and citations omitted).
The remand in this case, as above indicated, supra note 1,
was pursuant to sentence six of 42 U.S.C. § 405(g). A remand of
this type "freguently occurs because the claimant seeks to
present new evidence of which the Agency or the claimant was
aware at the time the Secretary's benefits determination was
4 made. Thus, in many sentence-six cases, the added expenses
incurred by the claimant on remand cannot be attributed to any
wrongful or unjustified decisions by the Secretary." Shalala v.
Schaefer. ___ U.S. ___, ___ , 113 S.C t . 2625, 2636 (1993)
(Stevens, J., concurring) (citing Sullivan v. Finkelstein, 496
U.S. 617, 626 (1990)).
As indicated in the outline of the evidence set forth in the
"Background" portion of this order, it is clear that this is not
a case where the position of the government was unjustified. The
fact that ultimately an ALJ found disability to exist does not
detract from the finding which this court here makes that, in
both its agency and its litigating positions, the government had
a reasonable basis for the facts it alleged and a reasonable
basis in law for the theories it advanced, and that the former
supported the latter. United States v. One Parcel of Real
Property, supra, 960 F.2d at 208.
Finding that the government has here sustained its burden of
proving by a preponderance of the evidence that its position was
"substantially justified," the court herewith denies the
plaintiff's motion for attorney's fees pursuant to EAJA.
2. Motion for Fees Pursuant to 42 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
Roberge v. SSA CV-93-418-SD 09/19/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kenneth Roberge
v. Civil No. 93-418-SD
Shirley Chater, Commissioner, Social Security Administration
O R D E R
Counsel for a successful social security disability claimant
has filed two motions seeking an award of attorney fees for his
services rendered in such case. This order addresses the issues
raised by said motions.
1. Motion for Award of Fees Pursuant to the Egual Access to
Justice Act (EAJA), document 17
a. Background
Claimant Kenneth Roberge initially alleged inability to work
since December 2, 1988, due to low back injuries sustained in a
motor vehicle accident. Although he raised an additional claim
of depression during a January 1993 administrative hearing, he
failed to provide evidence in support of that claim, nor did he
reguest assistance in obtaining such evidence through the Commissioner. His claim was denied by an Administrative Law
Judge (ALJ) and affirmed on review by the Appeals Council.
Claimant sought relief in this court, and the case was
ultimately remanded to the Commissioner.1 On remand, the record
was supplemented with new medical information concerning
plaintiff's psychological treatment since April of 1993. Counsel
also amended the date of onset of disability from December 2,
1988, to January 1, 1992.
The newly submitted medical evidence, in conjunction with
the previously submitted medical evidence concerning plaintiff's
back injuries, was considered by an ALJ.2 His decision concluded
that plaintiff was disabled, and benefits were awarded
accordingly.
b. Discussion
The motion, to which defendant objects (document 22), seeks
fees of $4,487.40 pursuant to the EAJA, 28 U.S.C. § 2412(d).
In relevant part, EAJA provides.
1The remand was had pursuant to sentence six of 42 U.S.C. § 405(g), which permits such remands "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . ."
2This ALJ was not the same ALJ who had previously reviewed and ruled on plaintiff's initial claim.
2 Except 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 . . . 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) (West Supp. 1992).
To be entitled to an award of fees under EAJA, alitigant
must first establish that he is a "prevailing party" as that
status is consistently used in other federal fee-shifting
statutes. Guglietti v. Secretary of Health and Human Services,
900 F.2d 397, 398 (1st Cir. 1990) (citations omitted).
Alternatively, a "prevailing party" may show that he has achieved
some of the benefits sought in bringing suit, a road not
successfully traveled in a case of a mere remand, id. at 400, or
because the lawsuit acts as a "catalyst" in prompting the
defendant to take action to meet plaintiff's claims, id. at 401.
As the circumstances of this case clearly comply with the latter
alternative, the court finds and rules that, for the purposes of
EAJA, Mr. Roberge is considered a "prevailing party".
The government here argues that its position was
substantially justified within the meaning of EAJA, and on this
issue the government bears the burden of proof by medium of a
3 preponderance of the evidence. United States v. One Parcel of
Real Property, 960 F.2d 200, 208 (1st Cir. 1992) (citing McDonald
v. Secretary of Health and Human Services, 884 F.2d 1468, 1475-76
(1st Cir. 1989)). To satisfy this burden, "'the government must
show that it had a reasonable basis for the facts alleged, that
it had a reasonable basis in law for the theories it advanced,
and that the former supported the latter.'" United States v. One
Parcel of Real Property, supra, 960 F.2d at 208 (guoting Sierra
Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.
1987)) .
The law is clear that "being wrong or losing is not the
standard. The government's agency and litigation positions, even
though incorrect and thus ultimately unsuccessful, can be
justified if they had a reasonable basis in law and fact." Morin
v. Secretary of Health and Human Services, 835 F. Supp. 1431,
1434 (D.N.H. 1993). The substantial justification reguirement of
EAJA properly focuses on the government misconduct giving rise to
the litigation. Id. (internal guotations and citations omitted).
The remand in this case, as above indicated, supra note 1,
was pursuant to sentence six of 42 U.S.C. § 405(g). A remand of
this type "freguently occurs because the claimant seeks to
present new evidence of which the Agency or the claimant was
aware at the time the Secretary's benefits determination was
4 made. Thus, in many sentence-six cases, the added expenses
incurred by the claimant on remand cannot be attributed to any
wrongful or unjustified decisions by the Secretary." Shalala v.
Schaefer. ___ U.S. ___, ___ , 113 S.C t . 2625, 2636 (1993)
(Stevens, J., concurring) (citing Sullivan v. Finkelstein, 496
U.S. 617, 626 (1990)).
As indicated in the outline of the evidence set forth in the
"Background" portion of this order, it is clear that this is not
a case where the position of the government was unjustified. The
fact that ultimately an ALJ found disability to exist does not
detract from the finding which this court here makes that, in
both its agency and its litigating positions, the government had
a reasonable basis for the facts it alleged and a reasonable
basis in law for the theories it advanced, and that the former
supported the latter. United States v. One Parcel of Real
Property, supra, 960 F.2d at 208.
Finding that the government has here sustained its burden of
proving by a preponderance of the evidence that its position was
"substantially justified," the court herewith denies the
plaintiff's motion for attorney's fees pursuant to EAJA.
2. Motion for Fees Pursuant to 42 U.S.C. § 406(b), document 18
This motion, to which defendant has no objection (document
5 20), seeks to recover attorney's fees in the amount of $3,526.50
for the services rendered claimant in connection with the court
portion of these proceedings. The itemization indicates that the
amount sought concerns approximately 33.24 hours of such
services.
The claimant entered into a contingent fee agreement with
counsel, and the services performed occupied approximately 37
months. The sum here sought averages $106.10 per hour, which is
well below counsel's hourly rate of $125.
On due review of the motion and its attachment, and in light
of the fact that defendant has no objection, it is herewith
ordered that counsel be awarded fees of $3,526.50 for his
services before the court pursuant to the provisions of 42 U.S.C.
§ 406 (b) .
3. Conclusion
For the reasons outlined, the court has denied the motion
for attorney's fees pursuant to EAJA (document 17) and has
granted the motion for attorney's fees pursuant to 42 U.S.C. §
406(b) (document 18).
SO ORDERED.
Shane Devine, Senior Judge United States District Court
September 19, 1996
6 cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.