Velon v. Berryhill

Background

Tammy Jean Velon applied for disability benefits in 2013. After the agency denied her claim, she sought judicial review in 2016. The court previously recommended granting her motion for summary judgment and remanding the case for further proceedings. The district court adopted that recommendation. The earlier ruling found that the Administrative Law Judge improperly weighed the evidence and created an inconsistent and unworkable residual functional capacity assessment.

Velon sought $8,747.54 in attorney fees, paralegal fees, costs, and expenses under the Equal Access to Justice Act. Her request included 43.8 attorney hours at $190 per hour, 2.7 paralegal hours at $75 per hour, and $223.04 in costs and expenses.

Positions of the Parties

Velon argued that she was the prevailing party and that the government’s position was not substantially justified. She argued that the Commissioner’s failure to object to the recommendation for remand showed a lack of substantial justification, and that remand itself demonstrated that the government’s position lacked sufficient evidentiary support.

The Commissioner did not contest Velon’s eligibility for fees or her prevailing-party status. The Commissioner argued that the government reasonably relied on the Administrative Law Judge’s determinations because the issues leading to remand were subject to genuine dispute. Alternatively, the Commissioner argued that the fee request was excessive and that Velon should not recover for two hours spent printing and assembling the administrative record.

Analysis

Under the Equal Access to Justice Act, a prevailing party may receive attorney fees in a case against the United States unless the government’s position was substantially justified or special circumstances make an award unjust. The Commissioner had the burden of showing substantial justification. A position may be substantially justified even if incorrect when a reasonable person would think it correct.

The court concluded that the government’s position was not substantially justified. It relied on the earlier summary-judgment remand and the detailed findings that the Administrative Law Judge committed conspicuous errors. The district court had adopted the earlier recommendation in its entirety. The court declined to decide whether the Commissioner’s failure to object to the recommendation independently constituted an admission that the government lacked substantial justification.

The court found the claimed attorney and paralegal hours reasonable in light of the multiple issues in the case. It also found the claimed $223.04 in costs and expenses recoverable because the Commissioner identified no authority supporting her argument against recovery. But the court agreed that printing and assembling the administrative record were secretarial or clerical tasks, not paralegal work warranting compensation at a paralegal rate. It therefore deducted $150 for two hours billed at $75 per hour.

Recommendation and Effect

The Report and Recommendation states that Velon’s motion for attorney fees should be GRANTED and that the Commissioner should promptly pay $8,597.54. Because this was a magistrate judge’s Report and Recommendation rather than a final district-court order, it was not directly appealable, and the notice allowed written objections within 14 days. Judge Katherine Menendez signed the recommendation.