                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-25-2005

Newell v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1455




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Newell v. Comm Social Security" (2005). 2005 Decisions. Paper 1553.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1553


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                            NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                           No. 04-1455


                                        JANICE NEWELL

                                             Appellant

                                                 v.

                           COMM ISSIONER OF SOCIAL SECURITY




                          On Appeal from the United States District Court
                                    for the District of New Jersey
                                          (D.C. No. 01-2850)
                           District Judge: Honorable Anne E. Thompson




                                Submitted November 3, 2004
                    Before: ALITO, BARRY, and FUENTES, Circuit Judges.

                                     (Filed January 25, 2005)

                                      OPINION OF THE COURT




FUENTES, Circuit Judge.

              Plaintiff-Appellant Janice Newell appeals the amount of attorney fees awarded per

order by the United States District Court for the District of New Jersey pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412.1 We remand for further proceedings consistent with this

decision.




                                                 I. Facts

       Newell applied to the Social Security Administration for widow’s disability benefits. Her

application was denied initially and upon reconsideration. Subsequently, an Administrative Law

Judge (“ALJ”) denied her application and the Appeals Council concluded that there was no ground

                   1
                       The EAJA provides in pertinent part:

                              (d)(1)(A) Except as otherwise specifically provided by
                              statute, a court shall award to a prevailing party other
                              than the United States fees and other expenses, in
                              addition to any costs awarded pursuant to subsection
                              (a), incurred by that party in any civil action (other than
                              cases sounding in tort), . . . brought by or against the
                              United States in any court having jurisdiction of that
                              action, unless the court finds that the position of the
                              United States was substantially justified or that special
                              circumstances make an award unjust.

                              (B) A party seeking an award of fees and other
                              expenses shall, within thirty days of final judgment in
                              the action, submit to the court an application for fees
                              and other expenses which shows that the party is a
                              prevailing party and is eligible to receive an award
                              under this subsection, and the amount sought, including
                              an itemized statement from any attorney or expert
                              witness representing or appearing in behalf of the party
                              stating the actual time expended and the rate at which
                              fees and other expenses were computed. The party shall
                              also allege that the position of the United States was not
                              substantially justified.

             28 U.S.C. § 2412(d)(1)(A-B).


                                                     2
for further review. Newell challenged the Commissioner’s ruling in the United States District Court

for the District of New Jersey. The District Court affirmed the Commissioner’s ruling. Thereafter,

Newell filed an appeal with this Court, advancing two arguments in support of her position: (1) the

ALJ failed to analyze the evidence, review the testimony, or offer expert medical opinion as to her

impairments prior to the expiration of her insurance status, and (2) the ALJ neglected to explain why

he rejected Newell’s argument that the expiration of her insured status for widow’s benefits should

have been extended until August of 1998. At oral arguments before this Court, Newell abandoned

the second of the two arguments, thus accepting August 31, 1997 as the cut-off date. In October of

2003, we issued an opinion reversing the decision of the District Court and remanding the case for

further proceedings before the Commission. See Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 549-

550 (3d Cir. 2003). Following our remand, Newell filed an application with the District Court for

attorney fees in the amount of $8,299. The Commissioner opposed the motion on the grounds that

the Commissioner’s position was “substantially justified” in accordance with Morgan v. Perry, 142

F.3d 670, 682 (3d Cir. 1998) (attorney fees and costs will not be granted upon a finding that the

government’s position was “substantially justified”).      The District Court concluded that the

Commissioner’s position was not substantially justified, but then awarded Newell only half of the

attorney fees requested because Newell withdrew one of the two arguments initially advanced. The

District Court noted:

        The Equal Access to Justice Act was not intended to fund the maintenance of
        claims with no legal basis. However, counsel’s affidavit in support of his
        motion does not delineate the hours spent on each of the two issues. Because
        Plaintiff only raised two issues on appeal, and her counsel withdrew one at

                                              3
        oral argument because it was not supportable, this Court will reduce counsel’s
        requested amount by half.

This timely appeal followed.


                            II. Jurisdiction and Standard of Review

       We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We generally review an

award of attorney fees under the EAJA under an abuse of discretion standard. Newmark v. Principi,

283 F.3d 172, 174 (3d Cir. 2002).




                                          III. Discussion

       Generally speaking, a “party seeking attorney’s fees has the burden to prove that its

request for attorney’s fees is reasonable.” See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d

Cir. 1990). And, in any case implicating the provisions of the EAJA, “it is important ‘for the

district court to provide a concise but clear explanation of its reasons for the fee award.’” United

States v. Eleven Vehicles, 200 F.3d 203, 211 (3d Cir. 2000) (quoting Hensley v. Eckerhart, 461

U.S. 424, 437 (1983)). See also Ranco Indus. Products Corp. v. Dunlap, 776 F.2d 1135,1140

(3d Cir. 1985) (“the district court [must] explain on the record the basis for its calculation” when

determining attorney fee awards).

       Here, Newell’s counsel did not delineate the hours spent on each of the two original

claims. In response, the District Court simply reduced the requested attorney fees award in half

because one of the two arguments originally advanced was abandoned. W hile this award may in



                                                 4
fact may be the correct result, the methodology employed by the District Court to reach this

conclusion was inadequate. The failure of Newell’s attorney to set out a full and complete

accounting of the work performed does not discharge the District Court of its responsibility to

explicate, on the record, a basis for the award. It does not appear that the District Court

conducted a hearing, requested an itemization of the time spent per argument, or otherwise tried

to calculate how many of the total hours expended by Newell’s attorney were devoted to the

abandoned argument. Cutting the award in half because one half of the arguments was

abandoned, irrespective of how many work hours were spent on each argument, does not

comport with the requirement of Eleven Vehicles, Dunlap, and Rode that the District Court

provide an explained reason as to why the requested attorneys fees were deemed unreasonable

and excessive. Accordingly, we remand to the District Court for the purpose of determining the

appropriate attorney fees to be awarded based on the time expended multiplied by a reasonable

hourly rate. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).

       We have considered all of the other arguments advanced by the parties and conclude that

they are without merit. Accordingly, the judgment of the District Court will be vacated.




                                                 5
