Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Seay v. Berryhill

United States District Court, D. South Dakota, Western Division

June 15, 2018





         Following the court's order remanding this case to the Social Security agency for further consideration, plaintiff Katrina Seay filed a motion for an award of attorney's fees, expenses, and costs. See Docket No. 30. The Commissioner objected in part to the request. See Docket No. 35.


         Under 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 (d)(1)(A).

         An 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. Seay's favor on March 27, 2018. See, Docket No. 29. Ms. Seay filed her motion for attorney's fees on May 15, 2018. See Docket No. 30. This was after the deadline for requesting attorney's fees under either the EAJA or this district's local rule. The Commissioner, however, does not object to the motion on timeliness grounds.

         The 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. Seay's case because it was not urged as grounds for denying the instant motion.

         In order to avoid an award of 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. Seay requested an award of the following:

Attorney's Fees ($182.50 hourly rate x 46.78[1] hours) $ 8, 537.35
Sales Tax on Attorney's Fees (6.5%) 554.93
Filing Fee 400.00

         Ms. Seay's attorney's actual hours expended pursuing judicial review of the Commissioner's decision below was 59.7 hours. See Docket No. 31-2 at p. 3. However, Ms. Seay voluntarily reduced these hours to 46.78, a 22 percent reduction. Id.

         The Commissioner does not take issue with Ms. Seay'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. Seay'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 one specific issue regarding the time entries.

         The Commissioner argues that .75 hours and .5 hours discussing with Ms. Seay the in forma pauperis motion, drafting the IFP paperwork, complaint and coversheet are not compensable because work performed at the administrative level is not compensable. This is true. But the IFP paperwork and the complaint were not necessitated, required or allowable at the administrative level. Those activities were directly related to pursuing the administrative appeal to this court. As such, they are allowable expenses.

         As to the Commissioner's general objection, she argues the total number of attorney hours expended is too much given the experience of Ms. Seay's attorney, the routine nature of the issues raised, the “boilerplate” arguments contained in Ms. Seay's brief, and the amount of time spent drafting the facts in the brief. The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.