     Case: 10-30293 Document: 00511389826 Page: 1 Date Filed: 02/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 22, 2011

                                       No. 10-30293                         Lyle W. Cayce
                                                                                 Clerk

RANDALL K. ROMERO,

                                                   Plaintiff - Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 2:07-CV-234


Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Randall K. Romero appeals the district court’s denial of attorney
fees at an hourly market rate of $200. Title 28 U.S.C. § 2412(b) permits a
district court to award attorney fees at the market rate “against the federal
government to the same extent it may award fees in cases involving other
parties.” Knights of the Ku Klux Klan Realm of La. v. E. Baton Rouge Parish
Sch. Bd., 679 F.2d 64, 67 (5th Cir. 1982); see Baker v. Bowen, 839 F.2d 1075,
1080 (5th Cir. 1988). Thus, under subsection (b), the federal government may

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-30293 Document: 00511389826 Page: 2 Date Filed: 02/22/2011



                                   No. 10-30293

be liable to a prevailing party for market rate attorney fees if the government
“acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Perales v.
Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992) (internal marks and citation
omitted) (emphasis in original).
      Before the district court, Romero made a colorable claim for market rate
attorney fees under subsection (b) due to the Commissioner’s alleged bad faith
during both the administration and litigation of his claim for benefits. See
Baker, 839 F.2d at 1082.      The district court did not however address the
argument. Instead, the district court awarded attorney fees under 28 U.S.C.
§ 2412(d). Subsection (d) requires a district court to award a prevailing party
attorney fees against the federal government, if the federal government’s
position was not substantially justified, unless another special circumstance
would make the award unjust.         See § 2412(d)(1)(A).    Fee awards under
subsection (d), although based on the prevailing market rate, are subject to a
statutory cap. See § 2412(d)(2)(A). Awards under subsection (b) are not. See
Baker, 839 F.2d at 1080. On appeal, Romero does not question the propriety of
the district court’s limited fee award under subsection (d). Romero argues only
that the district court abused its discretion by not considering his argument for
market rate attorney fees under subsection (b) and by not finding that the
Commissioner acted in bad faith, which necessitated an award under (b).
      Ordinarily, we review the denial of a motion for attorney fees for abuse of
discretion. See id. at 1082. However, when a district court fails to articulate
reasons for its decision to deny fees, “we cannot exercise meaningful review.”
Schwarz v. Folloder, 767 F.2d 125, 133 (5th Cir. 1985). Without reasons why the
district court denied Romero’s claim for market rate fees under subsection (b),
“we do not know whether the decision was within the bounds of its discretion or
was based on an erroneous legal theory.” Id. Accordingly, “we must remand for
further findings by the district court.” Id.

                                        2
    Case: 10-30293 Document: 00511389826 Page: 3 Date Filed: 02/22/2011



                                  No. 10-30293

      We express no opinion as to whether the Commissioner acted in bad faith
or whether the district court should on remand award market rate attorney fees
under subsection (b). “[T]his issue must be decided, in the first instance, by the
district court.” Id. at 134. The district court’s order limiting attorney fees is
vacated and the case is remanded for further proceedings in accordance
herewith.
VACATED and REMANDED.




                                        3
    Case: 10-30293 Document: 00511389826 Page: 4 Date Filed: 02/22/2011



                                   No. 10-30293

KING, Circuit Judge, dissenting:
      I respectfully dissent from the majority’s conclusion that remand for
further findings by the district court regarding the Commissioner’s alleged bad
faith is necessary in this case.




                                        4
