Hubbard v. Commissioner of Social Security

Background

Susan Hubbard filed this action under 42 U.S.C. § 405(g) seeking review of the Commissioner of Social Security’s denial of her application for disability insurance benefits. An administrative law judge found that Hubbard was not disabled, and the agency’s Appeals Council declined to review that decision.

In this court, Hubbard argued that the administrative law judge had not been properly appointed under the Appointments Clause of the Constitution. The Commissioner argued that Hubbard had waived the challenge because she had not raised it during the agency proceedings. After the Supreme Court decided Carr v. Saul, this court granted Hubbard’s motion for judgment on the pleadings based on the appointment issue and remanded the case to the Commissioner for further proceedings before a different, properly appointed administrative law judge.

Attorney’s-Fee Motion

Hubbard then sought $6,734.48 in attorney’s fees and costs under the Equal Access to Justice Act, commonly called the EAJA. The court explained that an EAJA award generally requires the claimant to be the prevailing party, the government’s position not to have been substantially justified, no special circumstances making an award unjust, and a timely, properly supported fee application.

The parties did not dispute that Hubbard was the prevailing party or that her application was timely. The Commissioner did not argue that special circumstances made an award unjust. The only issue was whether the Commissioner’s position had been substantially justified—that is, whether it had a reasonable basis in law and fact.

Court’s Analysis

The court found that the Commissioner’s position during the agency proceedings was substantially justified. Hubbard had not raised the Appointments Clause issue before the administrative law judge or the Appeals Council, and the court held that the Commissioner was not required to raise the issue on her own. The administrative law judge had also issued the decision about seven months before the Supreme Court’s decision in Lucia v. SEC, which addressed the constitutional appointment issue involving administrative law judges.

The court also found that the Commissioner’s position in the federal litigation was substantially justified. When the Commissioner argued in October 2019 that Hubbard had waived the appointment challenge, neither the Supreme Court nor the Second Circuit had decided whether claimants had to raise such challenges during the agency proceedings. Courts were divided, and several courts had agreed with the Commissioner’s position.

Disposition

The court held that the Commissioner’s position concerning the Appointments Clause was substantially justified, even though the argument was ultimately rejected after Carr v. Saul. Judge Andrew E. Krause denied Hubbard’s motion for attorney’s fees under the EAJA and directed the Clerk of Court to terminate the motion at ECF No. 27.