United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO
JUSTICE ACT (DKT. NO. 66)
KATHERINE A. ROBERTSON United States Magistrate Judge.
before the court is a motion by Plaintiff Sherri Stewart
("Plaintiff") pursuant to the Equal Access to
Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for
an award of attorney's fees and expenses incurred to
obtain retroactive Social Security Disability Insurance
("SSDI") benefits. Plaintiff seeks attorney's
fees in the amount of $33, 808.34 for work performed from
September 25, 2012 through July 21, 2017. The Acting
Commissioner of the Social Security Administration
("Commissioner") opposes the Plaintiff's
request. The parties have assented to the court's
jurisdiction. See 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73. For the following reasons, the court DENIES
Plaintiff's motion for attorney's fees and expenses.
protracted history of this case, as set out in Stewart v.
Berryhill, Civil Action No. 3:13-cv-30092-KAR, 2017 WL
2435281 (D. Mass. June 5, 2017), is as follows:
On April 10, 2009, Plaintiff applied for SSDI (Dkt. No. 1-3
at 6). She was found not disabled on June 2, 2009 (Dkt. No.
47-7 at 4). However, on November 11, 2010, upon
reconsideration, she was determined to have been disabled as
of December 2008 and was awarded retroactive benefits from
December 2008 to October 2010 (Dkt. No. 1-3 at 6; Dkt. No.
47-7 at 4). On February 18, 2011 and March 23, 2011, the
Social Security Administration ("SSA") billed
Plaintiff for its alleged overpayment of her retroactive SSDI
benefits due to offsets by workers' compensation benefits
that she received (Dkt. No. 1-3 at 6). Plaintiff
disagreed with the SSA's calculation of the amount of the
offset, claimed that she was owed additional retroactive SSDI
benefits, and requested a hearing before an Administrative
Law Judge ("ALJ") after the SSA denied her request
for reconsideration (Dkt. No. 1-3 at 6). On September 7,
2012, Plaintiff and the SSA's Office of Dispute
Resolution ("ODAR") agreed on a settlement amount,
which they recommended to the ALJ (Dkt. No. 47-7 at 5). On
September 25, 2012, accounting for the workers'
compensation offset, the ALJ awarded the following
retroactive benefits to which Plaintiff and ODAR had agreed:
$11, 520 to Plaintiff; $6, 298 to her daughter; and $4, 020
to her son (Dkt. No. 1-3 at 7-8; Dkt. No. 47-7 at 5).
Because the Commissioner did not pay the retroactive SSDI
benefits the ALJ awarded, on May 3, 2013, Plaintiff sought
mandamus relief in this court (Dkt. No. 1; Dkt. No. 1-3 at
8). In August 2013, a claims authorizer in the Centralized
ALJ Group of the Processing Center of the SSA's Office of
Centralized Operations reviewed Plaintiff's file in
response to her writ of mandamus and determined that the ALJ
miscalculated Plaintiff's workers' compensation
offset for December 2008 through July 2010 and, thus, the
ALJ's decision was erroneous (Dkt. No. 14-1 ¶¶
3, 5, 6, 7). The claims authorizer referred the case to the
Appeals Council by submitting a "protest
memorandum" (Dkt. No. 14-1 at ¶ 9). On January 24,
2014, the Appeals Council notified Plaintiff that it had
vacated the ALJ's decision and remanded the case to the
ALJ for further proceedings, including a new hearing (Dkt.
No. 34-3; Dkt. No. 41 at 1). On December 12, 2013, Plaintiff
asked this court to issue a temporary restraining order
and/or preliminary injunction to prevent the hearing on the
ground that the Appeals Council did not have jurisdiction to
remand the case to the ALJ (Dkt. No. 23). The Commissioner
agreed to stay the ALJ's hearing pending the court's
decision on Plaintiff's motion (Dkt. No. 40). On December
30, 2014, Magistrate Judge Kenneth P. Neiman denied
Plaintiff's motion for a writ of mandamus based on [a
lack of subject matter jurisdiction under 28 U.S.C. §
1331 and] Plaintiff's failure to exhaust the
administrative avenues of relief made available when the
Appeals Council reopened the case and remanded it to the ALJ
(Dkt. No. 41). [Magistrate] Judge Neiman further denied
Plaintiff's motion for a temporary restraining order
and/or preliminary injunction, closed the case, and remanded
it to the ALJ for hearing (id.). See Stewart v.
Colvin, Civil Action No. 13-30092-KPN, 2014 WL 7405753,
at *1-2 (D. Mass. Dec. 30, 2014), remanded, No.
15-1162 (1st Cir. Jan. 13, 2016). Plaintiff appealed
[Magistrate] Judge Neiman's ruling (Dkt. Nos. 42, 45,
46). On January 13, 2016, the First Circuit affirmed
[Magistrate] Judge Neiman's decision, concluding that
"exhaustion of administrative remedies is required"
(Dkt. No. 45).
The ALJ who presided over the first hearing in September 2012
also presided over the second hearing and issued her decision
on September 30, 2016 (Dkt. No. 47-7). The ALJ addressed
whether: (1) there was an overpayment or underpayment of
Plaintiff's and her children's retroactive SSDI
benefits considering the workers' compensation offset;
(2) there was an error in the settlement terms that were
incorporated into her September 25, 2012 decision; and (3)
the SSA's protest was timely (Dkt. No. 47-7 at 6). The
ALJ determined that Plaintiff was entitled to recover the
settlement amount that was included in her September 25, 2012
decision (Dkt. No. 47-7 at 6-12). Consequently, the ALJ found
that Plaintiff and her children had been underpaid and
awarded the following: $11, 520 to Plaintiff; $6, 298 to her
daughter; and $4, 020 to her son (Dkt. No. 47-7 at 11-12).
These amounts were to be reduced by the "maximum amount
[of attorney's fees] allowed" (Dkt. No. 47-7 at 12).
Because Plaintiff had not received payment on December 28,
2016, she filed another motion for a writ of mandamus (Dkt.
No. 47). On February 21, 2017, the Commissioner opposed
Plaintiff's motion and moved for dismissal of her
complaint based on payment to Plaintiff and her children on
or about February 2 and 6, 2017 (Dkt. No. 53-1). Plaintiff
agree[d] that so much of her motion as was directed at
obtaining payment from the Commissioner [was] moot, but
argue[d] that she [was] entitled to attorneys' fees and
costs under the EAJA (Dkt. No. 54). The Commissioner
dispute[d] this contention (Dkt. No. 57).
Id. at *1-2 (footnote omitted). On June 5, 2017, the
undersigned determined that Plaintiff's request for
attorney's fees and expenses under the EAJA was premature
because "final judgment" had not yet entered,
denied Plaintiff's motion for a writ of mandamus, and
allowed the Commissioner's motion to dismiss.
Id. at *3 (quoting 28 U.S.C. § 2412(d)(1)(B)).
Thereafter, Plaintiff moved for fees and expenses (Dkt. No.
66). The Commissioner opposed Plaintiff's motion,
Plaintiff responded to the Commissioner's opposition, and
the Commissioner replied (Dkt. Nos. 68, 69, 72).
Commissioner opposes an award of attorney's fees and
expenses under the EAJA alleging that: (1) Plaintiff was not
a "prevailing party" as that term is used under the
EAJA; (2) if Plaintiff is deemed to be a prevailing party,
her application for fees is untimely with respect to fees
incurred for work performed from September 25, 2012 through
December 30, 2014; and (3) Plaintiff's attorney's
requested hourly rate of $250 is excessive (Dkt. No. 68). In
the court's view, binding precedent compels the
conclusion that Plaintiff is not a "prevailing
party" as that term has been interpreted. Because
Plaintiff did not meet the precondition of being a prevailing
party as the EAJA defines that term, see 28 U.S.C.
§ 2412(d)(1)(A), she cannot recover under the statute.
Consequently, the court's discussion is limited to the
first of the Commissioner's three objections.
EAJA provides in relevant part:
[A] court shall award to a prevailing party other than the
United States fees and other expenses . . . 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 ...