United States District Court, D. New Jersey
OPINION & ORDER
MCNULTY UNITED STATES DISTRICT JUDGE.
2013, this matter was initially remanded to the SSA by Judge
Martini. Spadactini v. Comm'r of Soc. Sec, No.
CIV. 2:12-06246 WJM, 2013 WL 6054605 (D.N.J. Nov. 15, 2013).
The matter was reheard at the administrative level, and Mr.
Spadaccini again appealed. By Opinion ("Op.", ECF
no. 20) and Order (ECF no. 21), this Court affirmed the
decision of the SSA denying DIB benefits for the period
September 1, 2007 through December 31, 2008 (die "DIB
issue"). I found, however, that the ALJ had failed to
consider or rule on the claim for SSI for the period January
1, 2009, through March 5, 2011 (the "SSI issue"),
and remanded for further consideration of that
issue. Counsel for Mr. Spadaccini now moves for
attorney's fees pursuant to the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d), claiming to have
prevailed on the portion of the Court's opinion that
remanded on the SSI issue. (ECF no. 22) For the reasons
stated herein, the application is denied.
concern of the EAJA is "that the Government, with its
vast resources, could force citizens into acquiescing to
adverse Government action, rather than vindicating their
rights, simply by threatening them with costiy
litigation" Pierce v. Underwood, 487 U.S. 552,
575 (1988). Thus the EAJA does not automatically award fees
to the victor in a suit against the government. See
Williams v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009).
Rather, it awards fees to the victor "unless the court
finds that 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). For the reasons stated herein, I find that
the government's opposition to this appeal was
"substantially justified." In addition,
"special circumstances"-chiefly, the failure of
petitioner's counsel to present the omitted issue clearly
to the ALJ, or to this Court on appeal-militate against an
award of fees.
case went before the ALJ on an earlier remand by Judge
Martini. As recounted in my earlier Opinion, Spadaccini's
counsel stated or implied to to the ALJ that the only issue
to be considered was the DIB issue. AS to the SSI issue,
counsel did not seek to correct the ALJ's oversight, if
oversight it was. See Op. 18-20. After the ALJ
denied relief on the DIB issue, Spadaccini's counsel
filed an appeal to this Court. On appeal, the second, SSI
issue did not go wholly unmentioned, but it was not clearly
presented for this court's review, and the
petitioner's brief fairly presented only the DIB issue.
See Op. 20.
review of the case, I noted that the SSI issue for the period
January 1, 2009 through March 5, 2011 seemed to have gone
unadjudicated. Sua sponte I entered a text order
directing counsel for both sides to address it. (ECF no. 16)
They did so, in short letter submissions. (ECF nos. 17, 18,
19) In my Opinion, stating that I was loath to find waiver, I
remanded the case on the SSI issue only, so that the ALJ
could consider it in the first instance. (Op. 20-21)
government's position was substantially justified. It did
not drag Mr. Spadaccini into court on flimsy grounds. Rather,
the government opposed the appeal on the only grounds fairly
presented, and prevailed on those grounds. Even where the
plaintiff has prevailed or obtained a mixed result, a court
may find that the government's position was substantially
justified. See Bassett v. Astrue, 641 F.3d 857, 860
(7th Cir. 2011) (remanding for clarification of
onset date but denying fee award, noting that "it
typically takes something more egregious than just a
run-of-the-mill error in articulation to make the
commissioner's position unjustified");
Williams, 600 F.3d at 302; Standowski v.
Colvin, Civ. No. 13-5663, 2016 WL 2625029 at *3 (D.N.J.
May 9, 2016). And this case does not even come up to that
mixed-result threshold. True, there was an additional ground
on which the government did not prevail (the SSI issue).
That, however, does not bespeak any weakness in the
government's position, and does not suggest that the
government was unreasonable in filing an opposition to the
appeal, which until the Court acted sua sponte
involved only the DIB issue. The SSI issue, moreover, was not
decided adversely at the administrative level; it was
overlooked and unadjudicated. Counsel for both sides, at the
court's prodding, addressed it only in short letter
submissions. And the result was not in any sense a victory,
but rather a remand so that the issue could be considered in
the first instance.
die "special circumstances" of this case argue
against an award of fees, which would reward petitioner's
counsel for its own oversights. As noted above, counsel
failed to clearly present the SSI issue to the ALJ on the
noted, the matter was initially remanded by Judge Martini in
2013. Counsel (the same counsel representing the claimant
here) was awarded a fee of $6050 for prevailing on that
appeal. (Civ. No. 12-6246, ECF no. 21) Having won a remand,
counsel then failed to pursue the SSI issue before the ALJ.
As a result, the SSI issue was never adjudicated on remand.
In a very real sense, then, the application here seeks a
second fee for a second, duplicative remand. And that remand
seemingly occurred only because the Court raised the issue
sua sponte. Under the circumstances, a fee award
would be inequitable.
IT IS this 27th day of March, 2018
that the application for attorney's fees (ECF no. 22) is
Familiarity with my prior Opinion is