Sample EAJA Motion-Two Attorneys-Work in District and Circuit Courts

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT AND FOR ENTRY OF FINAL JUDGMENT ORDER

1. Plaintiff, Jill Doe, hereby submits her application to the Court for an award of attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. §2412, alleging that the Defendant’s position was not “substantially justified” and Plaintiff is a prevailing party under the EAJA.

2. Plaintiff applied for disability insurance Supplemental Security Income (“SSI”) disability benefits and was found not disabled or eligible for benefits by the Social Security Administration. Plaintiff went through the administrative appeals process, eventually being found not disabled in a decision by an Administrative Law Judge December 7, 2005. (AR. 13 25.) The Appeals Council denied plaintiff’s appeal, leaving the ALJ’s decision as the final decision of the Commissioner (AR. 4-6).

3. Plaintiff filed a Complaint in this Court pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3) for judicial review of the Commissioner’s final decision.

4. On August 12, 2007, this Court affirmed the Commissioner’s decision to find plaintiff not disabled.

5. Plaintiff filed a Notice of Appeal to the Seventh Circuit. The matter was fully briefed and oral argument was held on June 5, 2008. Plaintiff was represented by David Traver before the district court, and by Barry Schultz at the Court of Appeals stage of review.

6. On July 3, 2008, the United States Court of Appeals for the Seventh Circuit rendered a decision which reversed and remanded the final decision of the Commissioner. See Doe v. Astrue, --- F.3d --- (7th Cir. 2008).

7. Under Shalala v. Schaefer, 509 U.S. 292, 300 301 (1993), Plaintiff is a prevailing party by virtue of the remand order of the Court of Appeals.

8. The position of the United States was not substantially justified. See 28 U.S.C. §2412(d)(1)(B). The “position of the United States” includes the action of the agency leading to the litigation. 28 U.S.C. §2412(d)(2)(D). Moreover, the burden of proof is on the Government to prove it was “substantially justified” in law and fact at both the administrative and court stages of adjudication. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Commissioner, I.N.S. v. Jean, 110 S. Ct. 2316, 2319 n.6 (1990); Cummings v. Sullivan, 950 F.2d 492, 497 (7th Cir. 1991). Substantial justification means “‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person.” Underwood, 487 U.S. at 565.

9. In United States v. Hallmark Construction Company, 200 F.3d 1076, 1080 (7th Cir. 2000), the Court of Appeals 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 propounded. Accord Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004).

10. “EAJA fees may be awarded if either the government’s pre-litigation conduct or its litigation position are not substantially justified. However, the district court is to make only...