Thornton v. Bowen

• Decision Date: 28 March 1986
• Docket Number: No. 85-655-CIV-5.,85-655-CIV-5.
• Citation: 639 F. Supp. 154
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Ada J. THORNTON, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.

639 F. Supp. 154

Ada J. THORNTON, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.

No. 85-655-CIV-5.

United States District Court, E.D. North Carolina, Raleigh Division.

March 28, 1986.

Susan H. Bradshaw, Raleigh, N.C., for plaintiff.

R.A. Renfer, Asst. U.S. Atty., Raleigh, N.C., for defendant.

ORDER

JAMES C. FOX, District Judge.

This matter is before the court on plaintiff's motion for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). On January 17, 1986, plaintiff moved for EAJA attorney's fees in the amount of $2,718.75. Defendant has responded to plaintiff's petition, thus, this matter is now ripe for disposition.

This civil action was filed on April 25, 1985 after defendant administratively denied, in part, plaintiff's application for a period of disability and disability insurance benefits under Sections 216(i) and 223(a) of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423(a). Plaintiff initially filed concurrent claims for disability insurance benefits and supplemental security income on February 20, 1981. These claims were denied administratively and Thornton, proceeding pro se, did not appeal that decision.

Subsequently, plaintiff again filed concurrent claims for disability insurance benefits and supplemental security income on September 2, 1983, alleging onset of disability as of August 19, 1983. After retaining counsel, plaintiff amended her claimed onset date to January 25, 1980. This application was denied at the initial administrative level on October 4, 1983, and again, after reconsideration on February 7, 1984. Thornton appealed and, pursuant to her request, an evidentiary hearing was conducted before an administrative law judge (ALJ) on June 15, 1984. As a result, the ALJ issued a partially favorable opinion on December 5, 1984, finding Thornton entitled to a period of disability commencing with an onset date of July 15, 1983. Plaintiff then requested review by the Appeals Council to consider modifying the ALJ's decision to incorporate the earlier onset date of January 25, 1980. The Appeals Council denied plaintiff's request on April 11, 1985 and Thornton subsequently commenced this action.

Pursuant to the clerk of court's scheduling instructions, plaintiff moved for judgment on the pleadings in a timely fashion. Despite an extension of time within which to respond to plaintiff's motion, defendant neither responded nor did the government file a motion to affirm the Secretary's decision. Defendant's failure to act occurred with clear notice of the repercussions of such failure, as contained in the clerk's June 26, 1985 notice which stated:

if counsel ... opposes plaintiff's motion, a motion must be filed for a judgment affirming the decision of the Secretary....

Failure to comply with these instructions may result in ... appropriate action by the court.

As a result of plaintiff's motion and defendant's failure to respond, Magistrate Leonard issued a memorandum on November 22, 1985, recommending that the Secretary's decision be reversed and remanded for an immediate award of benefits with disability commencing January 25, 1980. Defendant again failed to object to the magistrate's recommendation and this court adopted the unopposed recommendation on January 9, 1986.

Defendant has now filed a response to plaintiff's motion, opposing plaintiff's application for fees under the EAJA, on the ground that the Secretary's position was substantially justified. This court firmly disagrees.

The EAJA permits an award of attorney's fees to a qualified prevailing party, other than the United States, in civil actions brought by or against the United States "unless the court finds that the position of the United States was substantially justified or that the special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).¹ The court has reviewed plaintiff's application for attorney's fees, affidavit of counsel, memorandum of law and defendant's objections thereto, and for the reasons set forth below, the court concludes plaintiff is entitled to attorney's fees under the EAJA.

Ordinarily, the government's position in the district court is substantially justified if the United States Attorney does no more than rely on an "arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d at 104, 108 (4th Cir. 1983). The finding that a final decision of the Secretary is not supported by substantial evidence does not equate to a finding that the position in the litigation was not substantially justified. Id.; Bennett v. Schweiker, 543 F.Supp. 897 (D.D.C.1982).

However, the government has the burden of demonstrating substantial justification for its position. Tyler Business Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982); Alspach v. Director of Internal Revenue, 527 F.Supp. 225, 229 (D.Md.1981). The government must show that the position had a reasonable basis both in law and fact. Smith v. Heckler, 739 F.2d 144, 146 (4th Cir.1984); Cornella v. Schweiker, 728 F.2d 978, 981-82 (8th Cir.1984); Zimmerman v. Schweiker, 575 F.Supp. 1436, 1439 (E.D.N.Y.1983); Trujillo v. Heckler, 596 F.Supp. 396 (D.Colo.1984). It is possible for the administrative record to be so deficient that the government may not reasonably rely on it. Guthrie v. Schweiker, 718 F.2d at 108.

In the case at bar, defendant's response to plaintiff's motion reviews, in detail, the evidence before the ALJ and concludes that the administrative determination of July 15, 1983 as the onset date of disability was substantially justified. Whether this argument is meritorious or not, in the procedural posture of this case, is irrelevant. During the entire time this action was pending in this court — nine months — defendant neither affirmatively indicated its reliance upon the administrative decision, now characterized as one which was "substantially justified," nor advanced a single argument in support of the same. Despite explicit instructions of this court that adverse orders would be entered against the Secretary if the government failed to respond to plaintiff's motion, and subsequently if it failed to object to the magistrate's recommendation, those warnings went unheeded. See Thomas v. Arn, ___ U.S. ___, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir.) cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984).

Essentially, plaintiff was forced to litigate this action and wait an extensive period of time for benefits due her, when the defendant had apparently elected not to contest the case before plaintiff ever moved for a favorable disposition. The government now seeks to defend the case after it has lost and judgment has been entered for the plaintiff. To allow the government to now assert its substantive argument in defense of the ALJ's decision would give judicial sanction to similar dilatory and irresponsible behavior in pending social security cases. That result is unacceptable both for the claimant in this case and as a precedent for other litigation.

A defendant must defend a case in this court on the merits when the action is pending. Proper motions must be timely made, responses timely filed, and reasonable defenses timely asserted. The Rules of Civil Preocedure establish specific procedures and timetables for the filing, processing, and disposition of civil cases. The rules were designed to expeditiously and equitably docket and determine those cases. To be effective, the rules must be applied uniformly; not inflexibly, but with sufficient consistency and clarity so that every litigant who comes before the court knows what is expected of him and what he can procedurally expect from the court.

In this case, defendant simply chose not to follow the rules and now seeks to avoid the consequences of that decision by defending this case long after the time for such defense has elapsed. The government had a full and fair opportunity to bring to this court's attention any factual or legal defense to plaintiff's complaint, including its factual or legal posture in the administrative proceeding. Yet not a single sentence was written and filed in support of the Secretary's decision nor explaining defendant's reliance thereon. What the defendant has subsequently filed in response to plaintiff's petition for EAJA fees is simply too late. The position of the defendant that the court must review is that taken during the pendency of the judicial action. Since the defendant, in fact, acceded to plaintiff's position by failing to respond or object in this court, the government can not now be heard to claim its defense was substantially justified.² There was no defense and something that never existed can not later be justified. See generally Rawlings v. Heckler, 725 F.2d 1192 (9th Cir.1984).

Furthermore, assuming arguendo that the government was not bound by its prior failures to respond, the court finds the administrative record indefensible. As the magistrate held, the Secretary disregarded (1) the uncontradicted opinion of plaintiff's treating physician to the effect that plaintiff was disabled as of January 25, 1980 and (2) clear evidence that plaintiff met the requirements of the Listing of Impairments set out in 20 C.F.R. § 404, Appendix I, Subpart P, Section 12.05(C). Memorandum and Recommendation at 6-8. The test, under the EAJA, is not whether there is some evidence to support the Secretary's position, but whether arguably there is substantial evidence to support the position. See Anderson v. Heckler, 756 F.2d 1011, 1013 (4th Cir.1985); Tressler v. Heckler, 748 F.2d 146, 150 (3d Cir.1985). Where the government ignores the overwhelming evidence of disability and relies, instead, on isolated parts of the evidence, as in this case, the government's position is unreasonable. See Cornella v. Schweiker, 728 F.2d 978, 984 (8th Cir.1984). Accordingly, the court concludes...