Trundle v. Bowen
| Decision Date | 02 September 1987 |
| Docket Number | No. 86-5409,86-5409 |
| Parties | Georgia TRUNDLE, Appellant, v. Otis R. BOWEN, Secretary of the Department of Health and Human Services of the United States of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Todd A. Schweiger, Rapid City, S.D., for appellant.
Ted L. McBride, Rapid City, S.D., for appellee.
Before HEANEY, WOLLMAN, and MAGILL, Circuit Judges.
Georgia Trundle appeals from the district court's order denying attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(A) (Supp. III 1985). Although this case presents a close question, we hold that the district court erred in failing to award attorney's fees.
Trundle is in her mid-forties, with an eighth grade education and past relevant work experience as a waitress, laborer and cook. She applied for supplemental security income (SSI) benefits in September 1984, claiming a disability due to severe back pain. Trundle's application was denied initially and upon reconsideration. Following a March 1985 hearing, the ALJ determined that, although Trundle suffered from osteoarthritis of the thoracolumbar spine and had a "severe impairment" which prevented her from performing her past work, she had the residual functional capacity to perform sedentary work, and therefore was not under a disability as defined in the Social Security Act. 1 After the Appeals Council upheld the ALJ's determination, Trundle filed an action in district court seeking judicial review of the denial of benefits.
The district court reviewed the pleadings and record, and, without calling for briefs from the parties, entered an order reversing the Secretary's decision and remanding for either a prompt award of benefits or further proceedings to determine whether jobs existed in the economy which Trundle could perform. Trundle v. Heckler, 626 F.Supp. 272 (D.S.D.1986). The government then filed a Fed.R.Civ.P. 60(b) motion to be relieved from judgment, which the district court summarily denied.
On remand, Trundle was awarded SSI benefits. On August 8, 1986, her attorney filed a timely motion in district court seeking attorney's fees under the EAJA. Under local court rules, the government then had ten days from the date of service to file objections to a fee award. However, it was not until August 25, 1986, that the government filed a response arguing that an award of attorney's fees was inappropriate in this case because the position of the United States was "substantially justified."
Trundle filed a motion to strike the government's response as untimely filed. The government then sought leave to file the response out of time, with counsel explaining that he "simply did not recall" that the local rules provided for a shorter time period for filing responses to motions for attorney's fees. On October 7, 1986, the district court issued an order denying the motion to strike "because [the government's] failure to file a response on time was apparently an inadvertent mistake," and denying the motion for attorney's fees because the court was "unable to find that the position of the United States was not substantially justified." This appeal followed.
The EAJA specifically authorizes an award of attorney's fees to a prevailing party unless the position of the United States is substantially justified, or unless special circumstances exist which make an award of fees unjust. 28 U.S.C. Sec. 2412(d)(1)(A). The government bears the burden of proving that its position at both the administrative and litigation stages was substantially justified; the test for determining substantial justification is essentially one of reasonableness. Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.1985). However, the government "must show not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct." United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1318 (8th Cir.1986). This court reviews the denial of EAJA fees under an abuse-of-discretion standard. See, e.g., Gamber v. Bowen, 823 F.2d 242, 244 (8th Cir.1987).
Trundle first argues that the district court erred in even considering the government's untimely resistance to her fee request. According to Trundle, the assertion of government's counsel that he simply forgot about the ten-day time limit for opposing fee awards was not an adequate excuse for failing to comply with local rules. Therefore, she maintains, any objection to the fee request should have been deemed waived. Trundle submits that, because the burden was on the government to establish the substantial justification of its position, and because its untimely submissions should not have been considered, it was improper for the district court to allow the government to proceed, and error to deny her request for fees.
This court has previously stated that it is for the district court to determine what departures from its local rules of practice may be overlooked. Braxton v. Bi-State Development Agency, 728 F.2d 1105, 1107 (8th Cir.1984). The district court's decision to permit the government to submit an untimely response does not appear to have been an abuse of discretion in the circumstances of this case. Furthermore, even if the government had never opposed the petition for fees, the district court would not have been precluded from denying a fee award under the EAJA. Jackson v. Bowen, 807 F.2d 127, 129 (8th Cir.1986) (per curiam). Although the burden of showing substantial justification is on the government, a formal government response to a petition for fees, while desirable, "is not a pre-condition of an order denying an award of fees under the Act." Campbell v. Bowen, 800 F.2d 1247, 1249 (4th Cir.1986).
The real question is whether, based on the record, the district court abused its discretion in finding that the government's position was substantially justified, i.e., that the government's defense of the underlying agency decision denying Trundle benefits was " 'essentially one of reasonableness in law and in fact.' " Keasler, 766 F.2d at 1231 (citations omitted). In answering this question, the district court's conclusions of law are to be reviewed de novo; its findings of fact are reviewed under a clearly erroneous standard. United States v. Estridge, 797 F.2d 1454, 1457 (8th Cir.1986) (per curiam).
In this instance, the district court's order stated only:
The Court is unable to find that the position of the United States was not substantially justified. As defendant points out, this case is similar to Albrecht v. Heckler, 765 F.2d 914 (9th Cir.1985), in which it was held that an award of EAJA fees is improper where the defendant's decision is reversed for failing to properly weigh conflicting medical evidence. In addition, the facts of Trundle are distinguishable from those of Cornella v. Schweiker, 728 F.2d 978 (8th Cir.1984). Therefore, attorney's fees will not be awarded to the plaintiff in this case.
The district court's reliance on Albrecht seems somewhat misplaced. In Albrecht, the ALJ's decision was reversed because he rejected the opinions of four treating physicians, and instead followed the opinions of two nontreating physicians without stating clear and convincing reasons for taking that position. His decision was thus not supported by substantial evidence. Albrecht, 765 F.2d at 915-916. Unlike Albrecht, Trundle cannot simply be characterized as a case reversed because conflicting medical evidence was improperly weighed. 2 Rather, the Secretary's decision was reversed on the basis of the record and pleadings because the ALJ (1) failed to apply the Polaski standard to evaluate Trundle's complaints of pain; (2) failed explicitly to shift the burden of proof to the Secretary after finding that Trundle could not perform past relevant work; 3 (3) improperly applied the Medical-Vocational Guidelines in a case involving a nonexertional impairment, after rejecting subjective evidence of pain for legally insufficient reasons; and (4) erred by not calling a vocational expert to testify about what jobs Trundle might be able to perform. Id. at 276-77.
Despite the district court's recitation of these departures from well-established law, the government filed a Rule 60(b) motion, maintaining that the Secretary's decision was supported by substantial evidence, and should have been affirmed. It was this action which, according to Trundle's attorney, precipitated the work that constituted a major portion of the fee request. And it was this action, taken in defense of the ALJ's decision, which arguably was not substantially justified.
In reaching his conclusion, the ALJ relied upon a standard for evaluating complaints of pain adopted by the Social Security Disability...
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