Morin v. Secretary of Health and Human Services

• Decision Date: 03 February 1993
• Docket Number: Civ. No. 91-316-D.
• Citation: 835 F. Supp. 1431
• Parties: Madeleine E. MORIN v. SECRETARY OF HEALTH AND HUMAN SERVICES.
• Court: U.S. District Court — District of New Hampshire

835 F. Supp. 1431

Madeleine E. MORIN v. SECRETARY OF HEALTH AND HUMAN SERVICES.

Civ. No. 91-316-D.

United States District Court, D. New Hampshire.

February 3, 1993.

Elizabeth R. Jones, Manchester, NH, for plaintiff.

Elaine Marzetta Lacy, Asst. U.S. Atty., Concord, NH, for defendant.

ORDER

DEVINE, Senior District Judge.

Presently before the court is plaintiff's motion for an award of attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(a) and (d) (EAJA). The Secretary objects on various grounds.

I. Background¹

As the result of an injury sustained in September 1982, plaintiff applied for social security disability insurance benefits on three separate occasions. The latter two applications, of September 19, 1987, and July 29, 1989, were subject to this court's review. Finding that the ALJ's conclusions regarding plaintiff's credibility were not supported by substantial evidence, the court reversed the Secretary's decision that plaintiff's impairment did not prevent her from returning to past relevant work. Moreover, the court found that there was no need to remand this case to the Secretary for further consideration because the record before the court demonstrated that under the Secretary's regulations, plaintiff was per se disabled. Accordingly, the court on April 1, 1992, pursuant to 42 U.S.C. § 405(g), ordered a sentence four remand, which merely directed the Secretary to compute the disability benefits due plaintiff. Judgment was so entered on April 13, 1992.

On April 27, 1992, the Secretary moved the court under Rule 59(e), Fed.R.Civ.P., to alter and amend judgment. Said motion was denied on June 5, 1992, and that post-judgment judgment was entered on June 18, 1992.

II. Discussion

The EAJA provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs ... 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 the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (West Supp.1992).

Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a `prevailing party'; (2) that the Government's position was not `substantially justified'; (3) that no `special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

Commissioner, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 2318, 110 L.Ed.2d 134 (1990). Not all of these conditions are at issue in this case. For example, defendant does not dispute that plaintiff is a "prevailing party". It is settled that "`if the remand order directs the Secretary to award benefits, the claimant is a prevailing party....'" Labrie v. Secretary of HHS, 976 F.2d 779, 786, (1st Cir.1992) (quoting Hafner v. Sullivan, 972 F.2d 249, 250-51 (8th Cir.1992)). Accordingly, the court finds that plaintiff is a "prevailing party". Jean, supra, 496 U.S. at 160, 110 S.Ct. at 2319.

Nor does defendant suggest that special circumstances exist that would make an award unjust. See, e.g., id. ("If the Government then asserts an exception for ... circumstances that render an award unjust, the court must make a second finding regarding this additional threshold condition."). However, by way of its first objection to an award of fees in this case, defendant challenges the court's subject matter jurisdiction.

A. Statutory Filing Requirement

Defendant contends that because plaintiff did not file her EAJA fee application until almost three months after the court entered final judgment in this action on June 18, 1992, such untimeliness deprived the court of jurisdiction.

As noted above, one of the statutory prerequisites to an EAJA award is that a party file a fee application within thirty days of final judgment in the action. Id. at 158, 110 S.Ct. at 2318; Labrie, supra, 976 F.2d at 780. The thirty-day filing requirement of EAJA is jurisdictional, and accordingly may not be waived by either the parties or the court. Howitt v. United States Dept. of Commerce, 897 F.2d 583, 584 (1st Cir.), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990) (collecting cases). However, "as used in EAJA, final judgment `means a judgment that is final and not appealable, and includes an order of settlement.' 28 U.S.C. § 2412(d)(2)(G). Under Fed.R.App.P. 4(a)(1), the remand order is `not appealable' after 60 days² — giving claimant a total of 90 days to file for fees." Labrie, supra, 976 F.2d at 780 n. 1. Accord Lenz v. Secretary, HHS, 798 F.Supp. 69, 71 (D.N.H.1992) (under sentence four of section 405(g), "`final judgment' enters as of the time of remand so that `the filing period begins after the final judgment ... is entered by the court and the appeal period has run, so that the judgment is no longer appealable'") (quoting Melkonyan v. Sullivan, 501 U.S. ___, ___, 111 S.Ct. 2157, 2165, 115 L.Ed.2d 78 (1991)).³

Furthermore, where, as here, a timely motion is filed under Rule 59(e), Fed.R.Civ.P., to alter or amend the judgment, "the time to appeal the underlying judgment for all parties shall run from the entry of the order ... granting or denying ... such motion." Rule 4(a)(4), Fed.R.App.P. See Fiore v. Washington Co. Com. Mental Health Ctr., 960 F.2d 229, 233 (1st Cir.1992).

The fatal flaw in defendant's argument is that it ignores the statutory definition of "final judgment", § 2412(d)(2)(G), and does not factor into the calculus any appeal period. Finding that the relevant time limitations expired on September 16, 1992, the court holds that plaintiff's motion for an award of fees, filed on September 15, 1992, was timely filed.

B. Substantial Justification

Here, as an exception to plaintiff's eligibility for fees, the government does assert that its position was substantially justified.

Under the EAJA, it is the government's burden to show, by a preponderance of the evidence, that its position was substantially justified. McDonald v. Secretary of HHS, 884 F.2d 1468, 1475 (1st Cir.1989); United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985). To meet this benchmark, both the government's underlying (agency) position and its litigation position must be substantially justified. McDonald, 884 F.2d at 1475-76.

United States v. Plat 20, Lot 17, Great Harbor Neck, 960 F.2d 200, 208 (1st Cir.1992) (emphasis added). The meaning of the phrase "substantially justified" in section 2412(d)(1)(A) was resolved by the United States Supreme Court in Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Therein, the Court held that that statutory phrase means "`justified in substance or in the main' — that is, justified to a degree that could satisfy a reasonable person." Id. at 565, 108 S.Ct. at 2550. "That is no different from the `reasonable basis both in law and fact' formulation adopted by ... the vast majority of ... Courts of Appeals." Id. (citing, inter alia, Yoffe, supra, 775 F.2d at 449-50); Jean, supra, 496 U.S. at 158 n. 6, 110 S.Ct. at 2318 n. 6. As articulated by the First Circuit, "`the government must show that it had a reasonable basis for the facts alleged, that it had a reasonable basis in law for the theories it advanced, and that the former supported the latter.'" Great Neck Harbor, supra, 960 F.2d at 208 (quoting Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir. 1987)).

It is settled that being wrong or losing is not the standard. The government's agency and litigation positions, even though incorrect and thus ultimately unsuccessful, can be justified if they "`had a reasonable basis in law and fact.'" Id. 960 F.2d at 211-12 (quoting Underwood, supra, 487 U.S. at 566 n. 2, 108 S.Ct. at 2550 n. 2). Thus, "the `substantial justification' requirement of the EAJA ... is one that properly focuses on the governmental misconduct giving rise to the litigation." Jean, supra, 496 U.S. at 165, 110 S.Ct. at 2322.

Regarding the ALJ's failure to reopen plaintiff's 1987 application, the court finds that such position was not substantially justified, as it was not "justified to a degree that could satisfy a reasonable person." Underwood, supra, 487 U.S. at 565, 108 S.Ct. at 2550. Underpinning this determination are the court's earlier conclusions based upon the record then before it. The ALJ had acknowledged the request to reopen and had never explicitly denied the request. Further, the record revealed that he considered new evidence and reached a decision on the merits. Such was enough for the court to find that the ALJ had, de facto, reopened the 1987 application. Accordingly, the court concludes that the failure to reopen cannot be said to have been reasonably based in law and fact. Great Neck Harbor, supra, 960 F.2d at 211-12.

Upon consideration of other aspects of the government's agency position in this matter, the court arrives at a similar result. The crux of the ALJ's determination that plaintiff's impairment did not prevent her from returning to past relevant work was his finding that her testimony regarding her subjective complaints was not credible and was exaggerative in some respects. There is no doubt in the court's mind that the ALJ and the Secretary had a reasonable basis in law for some theories advanced, e.g., responsibility for credibility determinations and deference due same. However, based upon the record before the court, there was no reasonable basis — at times, no basis at all — for many of the ALJ's factual allegations. For example, he repeatedly made erroneous statements of fact, revealing an...