Opinion
6:18-CV-01326 EAW
2022-07-08
GARTH D., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Brynn Lapszynski, Disability Justice, Philadelphia, PA, for Plaintiff. Heetano Shamsoondar, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Brynn Lapszynski, Disability Justice, Philadelphia, PA, for Plaintiff.
Heetano Shamsoondar, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Garth D. ("Plaintiff") brought this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). On April 30, 2021, the Court remanded Plaintiff's case for further administrative proceedings, consistent with the United States Supreme Court's decision in Carr v. Saul , ––– U.S. ––––, 141 S. Ct. 1352, 209 L.Ed.2d 376 (2021), which held that exhaustion is not required for Appointments Clause challenges. (See Dkt. 18; Dkt. 19).
Presently before the Court is a motion filed by Plaintiff, seeking $3,900.00 in attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (Dkt. 21), which the Commissioner opposes (Dkt. 23). For the reasons discussed below, Plaintiff's motion is denied.
BACKGROUND
Plaintiff protectively filed his application for DIB on May 19, 2014. (Dkt. 6 at 109). Thereafter, on May 31, 2014, Plaintiff filed an application for SSI. (Id. at 118). In his applications, Plaintiff alleged disability beginning October 16, 2010, due to the following impairments: deep vein thrombosis ; pulmonary embolism ; type II diabetes ; sleep apnea ; high blood pressure ; and high cholesterol. (Id. at 110-11, 119-20). Plaintiff's applications were initially denied on September 30, 2014. (Id. at 152-57). At Plaintiff's request, a video hearing was held before administrative law judge ("ALJ") Douglass Alvarado on April 11, 2017. (Id. at 46-108). Plaintiff appeared in Rochester, New York, and the ALJ presided over the hearing from Newark, New Jersey. (Id. ). On July 3, 2017, the ALJ issued an unfavorable decision. (Id. at 29-40). Plaintiff requested Appeals Council review; his request was denied on June 29, 2018, making the ALJ's determination the Commissioner's final decision. (Id. at 17-19). This action followed. (See Dkt. 1).
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
On October 24, 2019, Plaintiff filed a motion for judgment on the pleadings. (Dkt. 9). Plaintiff's sole argument in support of his motion was that the Court should remand the matter to the Commissioner for a new administrative hearing, because the ALJ presiding over his original hearing was not constitutionally appointed under the Appointments Clause in the United States Constitution, and therefore he lacked the authority to adjudicate Plaintiff's disability claim. (Id. ). In support of his argument, Plaintiff relied on Lucia v. S.E.C. , ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018), in which the Supreme Court held that SEC ALJs are "Officers of the United States," and as such they must be appointed by the procedures prescribed in Article II's Appointments Clause. Id. at 2051, 2053. In other words, an ALJ must be appointed by either the president, a court of law, or a head of department. See U.S. Const. Art. II, § 2, cl. 2. The Supreme Court found that the SEC ALJs were not appropriately appointed because SEC staff had hired them, and that the Lucia plaintiff had made a timely challenge to the validity of the ALJ's appointment. Lucia , 138 S. Ct. at 2055. Accordingly, the Court found the plaintiff was entitled to a new hearing before a different ALJ. Id.
The Commissioner filed a cross-motion for judgment on the pleadings on December 23, 2019. (Dkt. 10). The Commissioner has "acknowledge[d] that much of the reasoning in Lucia applies equally to SSA ALJs." See Bonilla-Bukhari v. Berryhill , 357 F. Supp. 3d 341, 350 (S.D.N.Y. 2019). Therefore, in opposing Plaintiff's motion for judgment on the pleadings, the Commissioner did not dispute that the ALJ was not properly appointed pursuant to the procedures prescribed in the Appointments Clause. Rather, the Commissioner argued that the Court should dismiss the Appointments Clause challenge because Plaintiff failed to raise it at any point during the administrative process, and he therefore forfeited his claim. (See Dkt. 10-1).
Following briefing on Plaintiff's motion, on October 1, 2020, the Court issued a Text Order, explaining that since the parties filed their motions for judgment on the pleadings, the law on the issue of whether a social security disability claimant is required to exhaust an Appointments Clause claim had developed. (Dkt. 12). Specifically, the Court cited to Ramsey v. Comm'r of Soc. Sec., 973 F.3d 537 (6th Cir. 2020) (exhaustion of Appointments Clause claim not required); Cirko v. Comm'r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020) (same); Davis v. Saul, 963 F.3d 790 (8th Cir. 2020) (exhaustion required); and Carr v. Comm'r of Soc. Sec., 961 F.3d 1267 (10th Cir. 2020) (same), and directed that the parties submit supplemental briefing on the issue within 30 days. (Id. ). Both Plaintiff and the Commissioner submitted supplemental briefing. (Dkt. 13; Dkt. 16).
Thereafter, on November 13, 2020, the Court issued another Text Order, noting that on November 9, 2020, the United States Supreme Court granted certiorari in Carr v. Saul (19-cv-1442), a Tenth Circuit case, and Davis v. Saul (20-105), an Eighth Circuit case, both of which addressed the Appointments Clause issue. (Dkt. 17). As the Appointments Clause claim was the only ground Plaintiff raised in support of his argument for remand, and therefore the Supreme Court's resolution of the issue would be dispositive of Plaintiff's motion, the Court stayed the case and the resolution of Plaintiff's motion until the Supreme Court had opined on the issue. (Id. ).
On April 22, 2021, the Supreme Court issued a decision in Carr v. Saul, ––– U.S. ––––, 141 S. Ct. 1352, 209 L.Ed.2d 376 (2021), holding that issue exhaustion is not required for Appointments Clause claims. The Court lifted the stay on the case and directed that the Commissioner file by April 29, 2021, any objection to the Court remanding the case for further administrative proceedings. (Dkt. 18). The Commissioner did not file any objection by that date, and on April 30, 2021, the Court remanded the case for further administrative proceedings. (Dkt. 19).
Plaintiff filed the instant motion for attorney's fees on July 16, 2021. (Dkt. 21). Following Plaintiff's filing his motion, the Court set a response deadline of August 6, 2021, and a reply deadline of August 13, 2021. (Dkt. 22). The Commissioner did not file a response by the August 6, 2021 deadline. Thereafter, on November 5, 2021, the Commissioner filed a consent motion for an extension of time, nunc pro tunc , to file a response to Plaintiff's motion by November 5, 2021 (Dkt. 23), and filed the response that same day (Dkt. 24). On June 14, 2022, the Court granted the Commissioner's motion, and set a reply deadline of June 24, 2022. (Dkt. 25). Plaintiff did not file a reply in further support of his motion.
DISCUSSION
I. Legal Standard
As the Second Circuit has explained:
The [EAJA] provides that "a court shall award to a prevailing party ... fees and other expenses ... 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 ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."
Vincent v. Comm'r of Soc. Sec. , 651 F.3d 299, 302-03 (2d Cir. 2011) (quoting 28 U.S.C. § 2412(d)(1)(A) ). "Thus, under the EAJA, eligibility for a fee award in any civil action requires: (1) that the claimant be a prevailing party; (2) that the Government's position was not substantially justified; [and] (3) that no special circumstances make an award unjust." Gomez-Beleno v. Holder , 644 F.3d 139, 144 (2d Cir. 2011) (citation and quotations omitted).
II. Plaintiff is Not Entitled to a Fee Award
The Commissioner does not dispute that Plaintiff is the prevailing party in this action, or the timeliness of Plaintiff's motion. (Dkt. 24 at 5). Rather, the Commissioner argues that Plaintiff is not entitled to his attorney's fees, because the Commissioner's position in opposing Plaintiff's motion for judgment on the pleadings was substantially justified. (See id. at 2 ("The numerous cases agreeing with the Commissioner's position on a question of then unsettled law establishes that the Commissioner's position was substantially justified.")). Specifically, the Commissioner argues that he had a reasonable basis in law and fact for the position that Appointments Clause challenges must be exhausted, as that issue was "a close question of unsettled law." (Id. at 2, 5). In support of his position, the Commissioner cites to several decisions from district courts finding that the Commissioner's position was substantially justified, and therefore the prevailing plaintiff was not entitled to fees under the EAJA. (Id. ).
The Court can award attorney's fees under the EAJA only if the government's position was not substantially justified. The government "bears the burden of showing that [its] position was ‘substantially justified,’ which the Supreme Court has construed to mean ‘justified to a degree that could satisfy a reasonable person.’ " Ericksson v. Comm'r of Soc. Sec. , 557 F.3d 79, 81 (2d Cir. 2009) (quoting Pierce v. Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). In other words, a position is substantially justified "if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Pierce , 487 U.S. at 565 n.2, 108 S.Ct. 2541. "When assessing the ‘position of the United States,’ [the Court] reviews both ‘the position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based.’ " Ericksson , 557 F.3d at 82 (quoting 28 U.S.C. § 2412(d)(2)(D) ).
The Second Circuit has expressly instructed that, in assessing the reasonableness of the government's position, "a court should not perform separate evaluations of the Government's position at each stage of the proceedings." United States v. $19,047.00 in U.S. Currency , 95 F.3d 248, 251 (2d Cir. 1996). Instead, "only one threshold determination for the entire civil action is to be made." Id. (citation omitted); see also Comm'r, I.N.S. v. Jean , 496 U.S. 154, 159, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ("Subsection (d)(1)(A) refers to an award of fees ‘in any civil action’ without any reference to separate parts of the litigation, such as discovery requests, fees, or appeals. The reference to ‘the position of the United States’ in the singular also suggests that the court need make only one finding about the justification of that position."). A district court's determination of whether the government's position was substantially justified is reviewable "only for an abuse of discretion." Commodity Futures Trading Comm'n v. Dunn , 169 F.3d 785, 786 (2d Cir. 1999) (citation omitted).
Considering the matter as a whole, the Court finds that the government's position was substantially justified. Plaintiff did not raise the Appointments Clause issue before the administrative agency, and in opposing Plaintiff's motion for judgment on the pleadings, the Commissioner relied on the principal that generally, an argument not timely raised before the administrative agency is waived. (See Dkt. 10-1 at 3-6 (citing cases supporting proposition that a plaintiff is required to exhaust claim at agency level before seeking redress in federal court)); see also Tilton v. S.E.C. , 824 F.3d 276, 291 (2d Cir. 2016) ("we conclude that Congress intended the appellants’ Appointments Clause claim ‘to be reviewed within’ the SEC's exclusive ‘statutory structure’ "); see also Woodford v. Ngo , 548 U.S. 81, 88-89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (noting "well established" doctrine of administrative exhaustion, which "provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted" (quotations and citations omitted)). The Supreme Court did not hold to the contrary with respect to Appointments Clause challenges brought by individuals who had been denied disability benefits until April 2021—approximately 16 months after the Commissioner filed his motion for judgment on the pleadings advocating the opposite position in December 2019. Before the Supreme Court issued its decision in Carr , the case law on the issue of whether a plaintiff was required to exhaust an Appointments Clause challenge was unsettled and the subject of a circuit split. See, e.g., Ramsey, 973 F.3d 537 (exhaustion of Appointments Clause claim not required); Cirko, 948 F.3d 148 (same); see also Davis, 963 F.3d 790 (exhaustion required); Carr, 961 F.3d 1267 (same); see also Carr , 141 S. Ct. at 1357 ("In three separate decisions ... the U.S. Courts of Appeals for the Eighth and Tenth Circuits adopted the Commissioner's forfeiture argument," but "[t]he Third, Fourth, and Sixth Circuits have all held the opposite").
Prior to the Supreme Court's decision in Carr , the Second Circuit had not expressly addressed the issue. Further, before and during the Commissioner's briefing submitted in connection with this case, at the district-court level, courts had reached differing conclusions as to whether exhaustion was required, but "[t]he vast majority of the considerable number of district courts ... who ha[d] considered the issue, ha[d] concluded a plaintiff waives [his] Appointments Clause challenge under Lucia when [he] does not raise it during the Commissioner's agency proceedings." Nunez v. Saul , No. 3:18-cv-1952(VLB), 2020 WL 967475, at *13 (D. Conn. Feb. 28, 2020) (collecting cases). See, e.g., Nestor v. Comm'r of Soc. Sec. , No. 19-cv-580(BMC), 2019 WL 4888649, at *3 (E.D.N.Y. Oct. 3, 2019) ("[A] Social Security claimant who fails to raise an Appointments Clause challenge to an ALJ's appointment at the administrative level waives this challenge."); McMorris v. Comm'r of Soc. Sec. , No. 6:18-CV-6118-DB, 2019 WL 2897123, at *11 (W.D.N.Y. June 26, 2019) (finding that the plaintiff waived her Appointments Clause challenge, and explaining that "Plaintiff's representative was certainly on notice that SSA ALJs ostensibly might be considered inferior officers, given the 40-year evolving history of this doctrine and the necessity for a proper appointment," and "[i]f Plaintiff wanted to contest the ALJ's appointment, the matter should have first been brought up in the administrative proceeding, not in federal court."); Johnson v. Berryhill , No. 3:17-cv-1651(VAB), 2019 WL 1430242, at *14 (D. Conn. Mar. 29, 2019) (agreeing with "a majority of the courts that have addressed this issue," and concluding that the plaintiff "failed to preserve her Appointments Clause argument"); Bonilla-Bukhari , 357 F. Supp. 3d at 350-51 (agreeing "with the vast majority of courts that have considered this issue following Lucia " and holding that Appointments Clause claims must be exhausted at the administrative level for a federal court to consider them). The Commissioner also relied on this case law in arguing his position that exhaustion of the Appointments Clause issue was required. (See Dkt. 10-1 at 7-8).
Based on the unsettled nature of the law prior to the Supreme Court's holding in Carr , and because the majority of courts within the Second Circuit had reached a conclusion consistent with the Commissioner's position, the Court simply cannot say that the Commissioner's position in opposing Plaintiff's motion for remand was not "substantially justified." The fact that multiple courts at both the circuit and district-court level agreed with the Commissioner's position on this issue supports that it had a reasonable basis in law and fact. See Pierce , 487 U.S. at 569, 108 S.Ct. 2541 (explaining that "the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified," but also recognizing that "a string of successes" may support the reasonableness of the government's position); see also Latoya A. o/b/o N.C. v. Kijakazi , No. 5:19-CV-581 (DJS), 2022 WL 969650, at *2 (N.D.N.Y. Mar. 31, 2022) ("That weight of authority strongly demonstrates that Defendant's litigation position in this case was substantially justified.").
Several other courts to have considered the question of whether the Commissioner's position was substantially justified have concluded that it was, and therefore payment of Plaintiff's attorney fees under the EAJA is not required. See, e.g., id. at *2-3 (finding that the plaintiff was not entitled to fee award under EAJA, and rejecting the plaintiff's argument to the contrary because Carr was a unanimous decision, explaining that "the determinative question is whether at the time the Commissioner took the relevant position in this case , it was substantially justified, rather than whether the ultimate resolution of the issue was in the Commissioner's favor" (emphasis in original)); Nelson S. v. Saul , No. 3:19-cv-01289-SDV, 2021 WL 5768520, at *4 (D. Conn. Dec. 6, 2021) ("The Court finds that the Commissioner's position was substantially justified due to the unsettled law surrounding the exhaustion requirement of an Appointments Clause challenge at the time of plaintiff's administrative hearing and subsequent federal appeal."); Dewonkiee L.B. v. Comm'r of Soc. Sec. , No. 5:19-CV-0503 (DEP), 2021 WL 3417842, at *3 (N.D.N.Y. Aug. 5, 2021) (court was "hard pressed to conclude that the government's position in this action—one that was both consistent with the greater weight of authority and accepted by [the court] in [its] initial decision in this action—was not substantially justified," and noting that "until the Supreme Court's essentially unanimous decision in ... Carr , the clear weight of authority among the district courts within the Second Circuit sided with the government's position in this case"); see also Hines v. Comm'r of Soc. Sec. , No. 18-16037 (SRC), 2020 WL 3396801, at *3 (D.N.J. June 18, 2020) (denying the plaintiff's motion for attorney fees, and concluding that "the Commissioner's position in this litigation was substantially justified").
In sum, given the weight of authority prior to the Supreme Court's decision in Carr , the Court finds that the Commissioner has carried his burden in demonstrating that his position that Plaintiff was required to exhaust the Appointments Clause issue was substantially justified. Therefore, Plaintiff is not entitled to payment of fees under the EAJA.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Attorney Fees (Dkt. 21) is denied.
SO ORDERED.