United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
Julie Ann Francke, filed this action complaining that the
Social Security Administration's administrative law judge
(“ALJ”) erred in denying her disability insurance
benefits. (Docket #1). The parties agreed that the ALJ's
decision was, in fact, erroneous. (Docket #14 at 2 and #15-2
at 7). However, the parties could not agree on a joint
stipulation for remand. Plaintiff wanted the Court to order a
de novo hearing on remand, while the Commissioner
did not believe such a hearing was necessary. See
(Docket #14 at 1-2). The Commissioner filed a motion to
remand laying out her position as to a de novo
hearing, see (Docket #13 and #14), and Plaintiff
responded, asking that the case proceed in this Court through
merits briefing because the parties could not agree to a
remand remedy, see (Docket #15).
April 20, 2017, the Court granted the Commissioner's
motion and remanded the case. (Docket #16 and #17). In its
remand order, the Court declined to require a de
novo hearing. (Docket #16). Instead, the Court deferred
to the judgment of the Social Security Administration as to
the necessity of such a hearing and ordered that the ALJ
issue a new decision consistent with all applicable rules and
regulations as interpreted in relevant Seventh Circuit case
law. Id. at 2.
then brought a motion for attorney's fees and costs under
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, seeking a total of $4, 387.38. (Docket
#18). The Commissioner responded, opposing Plaintiff's
request for fees in part. (Docket #21). Specifically, the
Commissioner stipulated to all portions of Plaintiff's
request for costs and fees apart from her request to have the
government pay her attorney's fees for the 10.7 hours he
expended on April 15 and 16, 2017, unsuccessfully opposing
the Commissioner's motion to remand, and the 2.6 hours he
spent on May 17 and 18, 2017, after Plaintiff rejected the
government's EAJA settlement offer. Id. at 2.
Plaintiff filed a reply, in which she defended the request
for a full award of fees and amended her request to include
compensation for the 3.6 hours her attorney spent preparing
the EAJA reply brief. (Docket #22). The total she now
requests is $4, 648.88. Id. at 7.
EAJA allows for an award of fees to a plaintiff in cases
against the United States when: (1) the United States'
position was not “substantially justified”; (2)
there is no special circumstance that would render an award
unjust; and (3) the plaintiff's application for fees is
timely. 28 U.S.C. §§ 2412(d)(1)(A), (B); see
also United States v. Hallmark Const. Co., 200 F.3d
1076, 1078-79 (7th Cir. 2000) (citing Commissioner, INS
v. Jean, 496 U.S. 154, 158 (1990)); Youngblood v.
Colvin, No. 13-CV-209-JPS, 2014 WL 2918575, at *2 (E.D.
Wis. June 27, 2014). It is Plaintiff's burden to prove
that her fee request is reasonable, and the district court
“has discretion in making this equitable
judgment” in light of the degree of success obtained in
the litigation. Hensley v. Eckerhart, 461 U.S. 424,
support of her argument for reduced fees in this case, the
Commissioner relies on Uphill, a 2003 case from this
District that this Court has previously cited with approval.
See Uphill v. Barnhart, 271 F.Supp.2d 1086, 1088
(E.D. Wis. 2003); see also Youngblood, No.
13-CV-209-JPS, 2014 WL 2918575, at *2 (noting that
Uphill provides a “very good framework for
analyzing EAJA requests”). The Uphill court
explained that in cases where courts grant requests by the
Commissioner for remand, they typically apply the following
framework to the plaintiff's subsequent request for fees
under the EAJA:
1. If the Commissioner moves for remand promptly upon the
filing of the action, and the plaintiff unreasonably opposes
the motion, the court may deny fees entirely.
2. If the Commissioner moves for remand after the plaintiff
has filed for summary judgment or otherwise briefed the
merits, and the plaintiff agrees to the remand, fees should
be awarded for the entire amount of time expended on the
3. If the Commissioner moves for remand after the plaintiff
has filed for summary judgment or otherwise briefed the
merits, and the plaintiff opposes remand, the court must
analyze the basis for the plaintiff's opposition.
a. If the plaintiff opposed remand in order to obtain a
judicial award of benefits, the court must determine whether
plaintiff's expectation of such an award was reasonable.
If so, full fees should be awarded; if not, fees should be
awarded only for the time spent prior to the motion or
recommendation for remand.
b. If the plaintiff opposed remand because she sought
additional judicial directives to the ALJ, the court should
determine whether the plaintiff's requests were
reasonable and, if they were granted, the extent to which the
plaintiff obtained any advantages on remand.
271 F.Supp.2d at 1091-92 (internal citations omitted).
Uphill, the plaintiff opposed the defendant's
voluntary motion for remand, instead arguing for a judicial
award of benefits. Id. at 1089. The court granted
the defendant's motion to remand, but the remand order
included directives to the ALJ that the defendant bore the
burden of proof in a termination of benefits case and that
the ALJ should apply the eight-step sequential evaluation
process in making his decision on remand. Id. at
1095. The court rejected the plaintiff's argument that
these directives constituted a victory sufficient to justify
an award of all of the fees sought, noting that these
directives were only a “side effect” of arguments
the plaintiff presented, that the burden of proof issue was
already addressed by regulations, and that there was no
indication that the plaintiff had sought additional
directives from the defendant and been rebuffed. Id.
at 1095-96. Nonetheless, the court found that the plaintiff
had obtained sufficient benefit from the opposition briefing
to warrant an award of some EAJA fees because his
efforts produced directives to guide the ALJ on remand.
Id. at 1096. The court awarded twenty percent of the
fees incurred after the Commissioner's motion to remand
was filed. Id.
case, the Commissioner filed her motion to remand before
Plaintiff filed her opening brief. See (Docket #13
and #14). Plaintiff then filed a “motion for leave to
file a summary judgment brief” in which she opposed the
Commissioner's request for a remand and instead asked the
Court to consider the merits of an attached summary judgment
submission. (Docket #15). In her summary judgment brief,