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Francke v. Berryhill

United States District Court, E.D. Wisconsin

July 9, 2018

JULIE ANN FRANCKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE

         Plaintiff, 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).

         On 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.

         Plaintiff 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.

         The 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, 436-37 (1983).[1]

         In 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 litigation.
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.

         Uphill, 271 F.Supp.2d at 1091-92 (internal citations omitted).

         In 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.

         In this 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, Plaintiff ...


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