Sample EAJA Brief addressing Mathews-Sheets

MEMORANDUM SUPPORTING MOTION FOR ATTORNEY'S FEES AND COSTS PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412

An applicant for attorney's fees under the EAJA must file an application within thirty days of the final judgment in the civil action. 28 U.S.C. § 2412 (d)(1)(B). However, an EAJA application may be filed until thirty days after a judgment becomes “not appealable.” 28 U.S.C. §§ 2412 (d)(1)(B) and (d)(2)(G). Since the Commissioner of an agency of the United States is a party in this case, a notice of appeal may be filed within 60 days of entry of the judgment of this court. Fed. R. App. P. 4 (a)(1). Plaintiff meets the threshold requirement of having a net worth not in excess of $2,000,000.00. The hours spent on this case, as itemized on the Statement submitted with the Plaintiff's Attorney's affidavit, were reasonable and necessary to provide good representation.

Assignment of EAJA fee: Assignment of the EAJA fee and costs by Plaintiff to Attorney David F. Traver is requested by the assignment in the fee agreement signed by Plaintiff, which accompanies this brief. Plaintiff requests that the Court order attorney-fee-and-costs checks in this case be paid to Attorney David Traver, pursuant to the assignment by Plaintiff. It is appropriate to make the payment to Attorney Traver if the Social Security Administration determines after the EAJA order that there are no prior debts due to the government from Plaintiff. Astrue v. Ratliff, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010).

The bases for the EAJA award: The court must determine whether “the position of the United States was substantially justified or . . . special circumstances make an award unjust.” 28 U.S.C. §2412 (d)(1)(A). The government has the burden of proving its action is substantially justified or that circumstances make an award of attorney's fees unjust. Cummings v. Sullivan, 950 F.2d 492, 495 (7th Cir. 1991) (substantial justification); Phil Smidt & Son, Inc. v. N.R.L.B., 810 F.2d 638, 642 (7th Cir. 1987) (substantial justification); Russell v. National Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985) (special circumstances). “The test for substantial justification is whether the agency had a rational ground for thinking it had a rational ground for its action.” Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994).

In Pierce, the Supreme Court held that the position of the United States is substantially justified if it is “justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 2550, 101 L. Ed. 2d 490 (1988). The Pierce Court provided further guidance on this standard, noting,

. . . [A] position can be substantially justified even though it is not correct, and we believe that it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.

Id. at 566 n.2, 108 S. Ct. at 2550 n.2.

The Court of Appeals for the Seventh Circuit has described the substantial justification standard as requiring that the government show that its position was grounded in "'(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced.'" United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000) quoting Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 (7th Cir. 1987) quoting Donovan v. DialAmerica Mkting, Inc., 757 F.2d 1376, 1389 (3d Cir. 1985). Furthermore, the “court only needs to find one reason for finding the ALJ was not substantially justified in order to allow EAJA fees . . .” Mallette v. Sullivan, 1990 WL 19894, *3-*5 (N.D. Il. 1990). It will be left to the government to meet its burden of showing that its position in this case, both at the agency level and in court, was substantially justified. The position of the Commissioner cannot be substantially justified because a reasonable person could not think it had a reasonable basis in law and fact.

Agency post hoc rationalizations in merits litigation have been improper and irrelevant for more than half a century. E.g., Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (explaining why post hoc rationalizations are improper) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943)); Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) (collecting Chenery cases). Likewise, if in the EAJA litigation the Commissioner relies on improper post hoc rationalizations, i.e., rationales the ALJ never provided, such post hoc rationalizations would be improper and not relevant. See FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986) (“That is, an agency may not avoid fees simply by arguing that a reasonable explanation existed to justify the underlying action.”)

Plaintiff has the burden of proving that the fees requested are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (although Hensley dealt with attorney's fees under 42 U.S.C. § 1988, the standards which it sets out are applicable generally to attorney's fee cases); Ruckelshaus v. Sierra Club, 463 U.S. 680, 691-92 (1983). The fees sought are reasonable as set forth in the Plaintiff's attorney’s affidavit in support of motion for award of attorney's fees, which accompanies this memorandum and the related motion.

Attorney fees shall not be awarded in excess of $125.00 per hour unless the court determines that an increase in the cost of living or other special factors justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). Plaintiff seeks adjustment in the attorney fee based upon an increase in the cost of living. The movant bears the burden of producing satisfactory evidence of the prevailing market rate for the kind and quality of legal services rendered. Wonders v. Shalala, 822 F.Supp. 1345, 1348 (E.D. Wis. 1993) (Warren, J.) citing Blum v. Stenson, 465 U.S. 886, 892 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). In 1993, Senior District Court Judge Robert W. Warren established the market rate in Milwaukee for legal services in comparable Social Security cases at $150.00 per hour. Wonders, at 1348-49. The attached cost...