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In re Fee Motions in Various Social Security Cases Affected by the Sixth Circuit Decision in Hicks

United States District Court, E.D. Kentucky

November 18, 2019

IN RE: Fee Motions in Various Social Security Cases Affected by the Sixth Circuit Decision in Hicks
v.
Comm'r of Soc. Sec.
v.
Comm'r of Soc. Sec., No. 17-5206 Robert L. Muncy, II Clinton Ryan Mullins
v.
Comm'r of Soc. Sec. Danny Lenn Reed
v.
Comm'r of Soc. Sec. Carolyn Lynn Bates
v.
Comm'r of Soc. Sec. Brenda Stewart
v.
Comm'r of Soc. Sec. Janie Shepherd
v.
Comm'r of Soc. Sec. Kathy Ramey
v.
Comm'r of Soc. Sec. Lenny Newsome
v.
Comm'r of Soc. Sec. Kathleen Campbell Curtis
v.
Comm'r of Soc. Sec. Ricky Casebolt
v.
Comm'r of Soc. Sec. Mary Sexton
v.
Comm'r of Soc. Sec. Eddie Reed
v.
Comm'r of Soc. Sec. Chessie Gray
v.
Comm'r of Soc. Sec. Chad Shepherd
v.
Comm'r of Soc. Sec. Margaret C. Copley
v.
Comm'r of Soc. Sec. Joann Holbrook
v.
Comm'r of Soc. Sec. Ranie Jo Coleman
v.
Comm'r of Soc. Sec. Martin Lee Gillespie
v.
Comm'r of Soc. Sec. Betty Robinson
v.
Comm'r of Soc. Sec. Tracy Ann Hannah
v.
Comm'r of Soc. Sec.

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Motions for Attorneys' Fees pursuant to the Equal Access to Justice Act filed in the above-referenced cases. The Motions have been fully briefed, or the time for filing of replies has expired, see L.R. 7.1(c), and all are now ripe for the Court's review. For the reasons set forth herein, the pending Motions are denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         All the Plaintiffs before the Court were victims of attorney Eric Conn's scheme to defraud the Social Security Administration (“SSA”). Hicks v. Comm'r of Soc. Sec., 909 F.3d 786, 792 (6th Cir. 2018). Each Plaintiff retained Conn to appeal the initial denial of their Social Security Disability Insurance (“SSDI”) or Supplemental Security Income (“SSI”) benefits. Id. Conn would include medical records from one of four examining doctors as part of the record, and in each case “ALJ David Daugherty rel[ying] exclusively on the doctors' medical opinions [would] conclude on the record . . . that plaintiffs were disabled and thereby entitled to either SSI or SSDI benefits.” Id. In reality, Conn worked with the doctors to use template Residual Function Capacity forms, which conveyed that each Plaintiff was disabled. Id. at 793. Conn then bribed Daugherty to “issue[] favorable rulings to Conn's clients.” Id.

         Ultimately, in July 2014, the Office of the Inspector General at the SSA determined that there were 1, 787 individuals-including Plaintiffs-who were represented by Conn and whose applications were potentially “tainted by fraud.” Id. at 794. As required by the Social Security Act, in May 2015, the SSA began the process of redetermining each Plaintiff's eligibility for SSDI or SSI benefits. Id. The SSA explained that it was required to “disregard any evidence from one of the medical providers [ ] when the information was submitted by representative Eric C. Conn or other representatives associated with Mr. Conn's law office.” Id. at 794-95. In each case, after ignoring that allegedly-fraudulent evidence submitted by Conn, the SSA determined that there was not enough evidence in the record to find the Plaintiffs disabled. Id. at 795. Thus, the cases were remanded for new hearings before an ALJ; at those hearings, Plaintiffs were permitted to submit additional evidence, which was considered if “it was ‘new and material' and concerned plaintiffs' disabilities on or before the date of Daugherty's initial decision.” Id. If requested, Plaintiffs could receive assistance developing the record. Id.

         During the hearings, the ALJs ignored the medical reports from the doctors working with Conn, [2] but considered all the other medical evidence (both old and new) in the files. Id. In Plaintiffs' cases, the ALJs determined that each Plaintiff had not been entitled to benefits, and any benefits payed were to be treated as “overpayment.” Id. Each Plaintiff exhausted administrative remedies and then sought relief in federal district court challenging the SSA's redetermination process as violating the Social Security Act, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act (“APA”). Id. District judges in this District issued conflicting decisions and the consolidated cases were appealed to the Sixth Circuit. Id. The Sixth Circuit found that the SSA's redetermination process violated both the Due Process Clause and the Administrative Procedure Act and remanded the cases for proceedings consistent with its opinion. Id. at 813. On July 12, 2019, the undersigned remanded the above cases to the SSA for redetermination consistent with Hicks and pursuant to sentence four of 42 U.S.C. § 405(g). Now before this Court are Plaintiffs' ripe Motions for Attorneys' Fees under the Equal Access to Justice Act (“EAJA”).

         II. ANALYSIS

         A. Standard Under the EAJA

         The EAJA provides that:

[A] court should award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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 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). The purpose of the law is “to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.” Scarborough v. Principi, 541 U.S. 401, 406 (2004) (quoting H.R. Rep. No. 96-1005, p. 9). Four requirements must be satisfied in order for a plaintiff to be awarded fees under the EAJA-(1) “the fee applicant [must] be a prevailing party, ” (2) “the government's position [was not] substantially justified, ” (3) “no special circumstances make an award unjust, ” and (4) the application for fees was filed “within thirty days of final judgment.” Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th Cir. 2007) (citing Comm'r, INS v. Jean, 496 U.S. 154, 158 (1990)). “[T]he district court at the EAJA stage must take a fresh look at the case from an EAJA perspective, and reach a judgment on fees and expenses independent from the ultimate merits decision.” Phillips v. Astrue, No. 2:08-cv-048, 2010 WL 625371, at *2 (E.D. Tenn. Feb. 17, 2010) (citing Fed. Election Comm'r v. Rose, 806 F.2d 1081, 1087-90 (D.C. Cir. 1986)).

         There appears to be no dispute that the Plaintiffs were the prevailing party, see, e.g., 7:16-cv-90 (Doc. # 32) (not disputing that Plaintiff was the prevailing party); Howard v. Saul, No. 7:16-cv-51-DCR, 2019 WL 5191831, at *3 (E.D. Ky. Oct. 15, 2019) (“It is undisputed that the plaintiffs are prevailing parties within the meaning of the EAJA.”), and the request seems to have been timely filed.[3] Additionally, it does not appear that the Commissioner is arguing the presence of special circumstances that make an award of attorneys' fees unjust. See, e.g., 7:16-cv-90 (Doc. # 32). The Plaintiffs' Motions fail, however, because the Government's position was substantially justified, see infra, so the requirements of the EAJA are not met.

         B. The Government's Position was Substantially Justified

         Under the EAJA, “[a] position is substantially justified when it is justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.” Howard v. Barnhart, 376 F.3d 551, 553 (6th Cir. 2004) (internal quotation marks omitted) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). A court must determine if the government's position, “as a whole, ” including “both the underlying agency action and the current litigation” is justified. Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir. 2016) (quoting E.E.O.C. v. Memphis Health Ctr., Inc., 526 Fed.Appx. 607, 615 (6th Cir. 2013)). The government has the burden of making that showing “and it discharges that burden by ...


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