United States District Court, D. South Dakota, Western Division
ORDER ON MOTION FOR ATTORNEY'S FEES AND COSTS
DOCKET NO. 28
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
the court's order remanding this case to the Social
Security agency for further consideration, plaintiff Amber
Webb filed a motion for an award of attorney's fees,
expenses, and costs. See Docket No. 28. The
Commissioner objected in part to the request. See
Docket No. 30.
the EAJA, a prevailing party in a civil suit against the
United States or one of its agencies shall be awarded
attorney's fees and costs. See 28 U.S.C. §
2412(a) and (d)(1)(A). However, if the court finds that the
government's position was substantially justified, the
court may choose not to make such an award. Id. at
application for fees and costs under the EAJA must be made
“within thirty days of final judgment in the
action.” See 28 U.S.C. § 2412(d)(1)(B).
By local rule, litigants seeking attorney's fees in this
district must file a motion for attorney's fees within 28
calendar days after the entry of judgment, absent a showing
of good cause. See DSD L.R. 54.1C. Here, the court
entered final judgment in Ms. Webb's favor on March 5,
2018. See, Docket No. 26. Ms. Webb filed her motion
for attorney's fees on April 23, 2018. See
Docket No. 28. This was fully one and a half months after the
deadline for requesting attorney's fees under either the
EAJA or this district's local rule. Ms. Webb does not
acknowledge that her motion is untimely, nor does she offer
any excuse constituting good cause for missing the filing
deadline. The Commissioner, however, does not object to the
motion on timeliness grounds.
30-day deadline under the EAJA is not jurisdictional. See
Scarborough v. Principi, 541 U.S. 401, 413-14 (2004).
Although the Commissioner does object to the requested award
of attorney's fees in this case, the objection is
substantive, not procedural. The 30-day time limit can be
waived by the Commissioner by not raising the argument.
See Vasquez v. Barnhart, 459 F.Supp.2d 835, 836
(N.D. Iowa 2006). This court, too, finds that the 30-day
requirement has been waived by the Commissioner in Ms.
Webb's case because it was not urged as grounds for
denying the instant motion.
order to avoid an award attorney's fees under the EAJA,
the government's position must have been
“substantially justified” at both the
administrative level and at the district court level.
Kelly v. Bowen, 862 F.2d 1333, 1337 (8th Cir. 1988).
In determining whether the government's position was
substantially justified, the court should examine whether
that position had a clearly reasonable basis in fact and in
law, “both at the time of the Secretary's decision
and the action for judicial review.” Id.;
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir.
2005). The government's position can be factually and
legally reasonable, “solid, ” even though that
position turned out to be not necessarily correct.
Kelly, 862 F.2d at 1337. A loss on the merits does
not give rise to a presumption that the Commissioner's
position was not substantially justified. Goad, 398
F.3d at 1025. The Commissioner bears the burden of proving
that its position was substantially justified. Id.
Ms. Webb requested an award of the following:
Attorney's Fees ($183.75 hourly rate x 54.43 hours) $10,
001.51 Sales Tax on Attorney's Fees (6.5%) 650.10 Filing
TOTAL AWARD REQUESTED: $11, 051.61
Webb's attorney's actual hours expended pursuing
judicial review of the Commissioner's decision below was
77.75 hours. See Docket No. 29-2 at p. 3. However,
Ms. Webb voluntarily reduced these hours to 54.43, a 25
percent reduction. Id.
Commissioner does not take issue with Ms. Webb's
entitlement to an award in general, nor with counsel's
hourly rate, nor with the sales tax or filing fee part of the
request. Instead, the Commissioner seeks a reduction of Ms.
Webb's attorney's fees to the “customary”
hours of 20 to 40 hours “routinely” spent on a
“typical” social security file. The Commissioner
also raises three specific issues regarding the time entries.
three specific objections the Commissioner raises are: (1)
one pre-complaint entry for 1.25 hours by Ms. Webb's
attorney is non-compensable; (2) two entries on September 15
and 16, 2016, for a total of .58 of an hour are
non-compensable because they relate to representation at the
administrative level; and (3) .25 hours on October ...