The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Savannah Herron, has filed a petition for attorney's
fees under the Equal Access to Justice Act ("EAJA") (doc. # 35).
The defendant, the Commissioner of Social Security (the
"Government"), does not challenge timeliness of Ms. Herron's
motion so long as the Court finds that the requirements of
Federal Rule of Appellate Procedure ("Rule")4(a)(6) have been
met, but it does challenge the petition on the merits. For the
reasons that follow, the Court finds that the petition is not
procedurally barred, and that, on the merits, the petition should
be granted. We therefore grant plaintiff an award of attorneys'
fees in the amount of $6,369.75.
We begin with the procedural issue. Although an EAJA petition
is not uncommon when a social security claimant prevails in
obtaining a remand in the district court, as the plaintiff did
here, the timing of this particular petition is unusual. The
Court entered summary judgment in favor of Ms. Herron on August
28, 2003 (doc. # 34), but she did not file her EAJA petition
until May 10, 2004, about seven and one-half months later. Plaintiff states that her first notice of the Court's summary
judgment order remanding this case to the Social Security
Administration ("SSA") was in "May 2004," pursuant to a notice
sent by the SSA scheduling a hearing before an Administrative Law
Judge ("ALJ") in June 2004 (Pl.'s Pet. at 2, ¶ 3). We note that
it is this Court's practice to mail copies of the judgments
entered in civil cases to all parties, and a phone call is
routinely made to the parties inviting them to pick up copies of
written orders. However, plaintiff's counsel surely had no
incentive to delay filing a petition to receive fees after
receiving notice of the Court's ruling. Thus, we have no reason
to question (and the Government offers none) the representation
of plaintiff's counsel that, despite this customary practice, she
did not receive notice of the summary judgment ruling at or about
the time it was entered.
Although the summary judgment order was entered on the docket
on August 28, 2003, it is evident after review of the Clerk of
the Court's records that a Rule 58 judgment was never entered on
a separate document. The Government correctly states that, even
if a judgment is not set forth on a separate document, that
judgment is considered "entered," for purposes of the Federal
Rules, 150 days after the entry of the judgment in the civil
docket under Rule 79(a). See Fed.R.Civ.P. 58(b)(2). Based on
this rule, final judgment was entered by operation of law on
January 26, 2004.
We now turn to the question of how these anomalies affect the
timeliness of the plaintiff's petition. A party seeking an award
of fees under EAJA in an action against the agency must file a
petition for fees "within thirty days of final judgment in the
action." 28 U.S.C. § 2412(d)(1)(B). Under
28 U.S.C. § 2412(d)(2)(G), the judgment becomes "final" once the time for
appeal has run. In an action against the SSA, the time for appeal
does not end until sixty days after entry of judgment. Fed.R.App.P. 4(a). An EAJA application must be filed
within thirty days after the time for appeal has ended. See
28 U.S.C. § 2412(d)(1)(B), (d)(2)(G).
In this case, judgment was entered (by operation of law) on
January 26, 2004; the sixty-day period for appeal ended on March
26, 2004; and the thirty-day period in which to file an EAJA
petition ended on April 26, 2004. Plaintiff's petition for fees
was filed on May 10, 2004, after the time for filing an EAJA
petition had passed.
The question remains as to whether we should consider the
plaintiff's petition, despite it not being filed within the
prescribed EAJA time period. To answer that question, we look to
Rule 4(a)(6) of Federal Rules of Appellate Procedure, which
allows a court to reopen the time for appeal if:
(A) the motion is filed within 180 days after the
judgment or order is entered or within 7 days after
the moving party receives notice of the entry,
whichever is earlier; (B) the court finds that the
moving party was entitled to notice of the entry of
the judgment or order sought to be appealed but did
not receive the notice from the district court or any
party within 21 days after entry; and (C) the court
finds that no party would be prejudiced.
Here, each of the three requirements of Rule 4(a)(6) has been
met. First, the petition was filed on May 10, 2004, which is
within 150 days after the entry of judgment (by operation of law)
on January 26, 2004.*fn1 And, the petition was filed within
seven days after the plaintiff received notice of the judgment by the notice of the SSA scheduling the matter
for hearing. Second, as explained above, the Court credits the
statement of plaintiff's counsel concerning when she received
notice of the judgment. Third, the Government has not asserted
that it would suffer any prejudice from the timing of the
petition, and we find none.
The Government agrees that Rule 4 governs this issue. In fact,
the Government waives any timeliness objection in the event that
"the Court finds that Plaintiff has satisfied the requirements of
that rule" (Def.'s Mem. at 2).*fn2 And, we have no doubt
about our jurisdiction to address this issue. See Scarborough v.
Principi, ___ U.S. ___, 124 S.Ct. 1856, 1864 (2004) (the
question of whether a fee award is time-barred "does not concern
the federal courts `subject-matter jurisdiction.' Rather, it
concerns a mode of relief . . . ancillary to the judgment of a
court that has plenary `jurisdiction of the civil action' in
which the application is made'"); see also Clark v. Busey,
959 F.2d 808 (9th Cir. 1992).
We therefore turn now to the merits of Ms. Herron's petition
for fees. We begin with the governing legal standards. Under the
EAJA, unless special circumstances make an award unjust, a court
will award attorney's fees to a prevailing party other than the
Government if the position of the United States was not
"substantially justified." 28 U.S.C. § 2412(d)(1)(A). The
Commissioner's position is substantially justified "if a reasonable person could
think it correct, that is, if it has a reasonable basis in law
and fact." Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.
1994) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2
(1988)). The Seventh Circuit has explained that the substantial
justification standard requires the Government to show "that its
position was grounded in `(1) a reasonable basis in truth for the
facts alleged; (2) a reasonable basis in law for the theory
propounded; and (3) a reasonable connection between the facts
alleged and the legal theory advanced.'" United States v.
Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir.
2000) (citing Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642
(7th Cir. 1987) (quoting Donovan v. DialAmerica Mkting,
Inc., 757 F.2d 1376, 1389 (3d Cir. 1985)).
Under the EAJA, the Government bears the burden of proving that
its position was substantially justified. Hallmark
Construction, 200 F.3d at 1079; see also Marcus, 17 F.3d at
1036. In making a determination of substantial justification, a
court may consider the Government's litigation position as well
as its prelitigation conduct. Marcus, 17 F.3d at 1036. EAJA
fees may be awarded if either the Government's prelitigation
conduct or its litigation position is not substantially
justified. Id. However, the district court is to make only one
determination for the entire civil action. Id. This global
assessment requires that the district court examine not simply
whether the Government was substantially justified at the
beginning or end of the proceedings, but also whether the
Government was substantially justified in continuing to push
forward at each stage. Hallmark Construction, 200 F.3d at 1081.
If substantially justified in its position, the Government will
not be ordered to pay fees under EAJA, even if the plaintiff
prevailed in the underlying action. See Berman v. Schweiker,
713 F.2d 1290, 1295, n. 18 (7th Cir. 1983) ("Congress . . .
made clear, . . . that, merely because the government loses a
case, a presumption does not arise that the government's position was not substantially justified"). See also Young v. Sullivan,
972 F.2d 830 (7th Cir. 1992); Kolman v. Shalala,
39 F.3d 173 (7th Cir. 1994); Jackson v. Chater, 94 F.3d 274
(7th Cir. 1996).
After review of the record, the Court concludes that the
Government's position was not substantially justified. The Court
remanded this case to the Commissioner because we found that: (1)
the ALJ did not provide sufficient articulation regarding the
side effects of her medication on her residual functional
capacity ("RFC") to perform light work; and (2) the ALJ made
certain errors regarding the medical evidence and Ms. Herron's
medical conditions that undermined the basis for confidence in
his decision. It was the Court's view (and still is) that if the
ALJ had correctly interpreted the medical evidence before him, a
different result regarding Ms. Herron's RFC might have resulted.
We do not view this as a credibility determination, as ...