in this case. As such, Plaintiff's petition for attorney's fees is not delinquent.
In its unauthorized remand, the court took the parties' cross-motions for summary judgment off calendar. Irrespective of the invalidity of that Order, the pending off-calendar motions have been rendered moot by the decision of the appeals council. However, because the Appeals Council is part of an administrative agency, its November 22, 1991 decision awarding Plaintiff's benefits is not "final" under the EAJA. Because final judgment can only be entered by a court of law, plaintiff's Application for Attorney's Fees filed December 4, 1991 shall be considered to include a Request to this Court for Entry of a Final Judgment.
Plaintiff's Request for Entry of Final Judgment is hereby granted.
B. Filing Within Thirty Days of Final Judgment
The 30-day EAJA filing period only begins to run after the time for appealing the District Court Judgment has expired -- or 60 days from the Entry of Final Judgment by the court. Melkonyan, supra, at 2162. The government in this case has stated that it would not appeal a final judgment that upholds the decision of the Appeals Council. Therefore, the 60-day appeals interval before Plaintiff's Counsel petitions for fees is rendered unnecessary and moot. Thus, plaintiff's request for fees, made the day the court entered final judgment, is not premature.
C. Government's Position Not Substantially Justified
Having decided that Counsel's petition for fees and costs is neither premature nor late, the petitioner prevails on the merits as well.
Attorneys fees are awarded to the prevailing party under the Equal Access to Justice Act § 2412(d)(1)(A):
(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, 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.
28 U.S.C. § 2412(d)(1)(A).
To determine whether the position of the United States was substantially justified, the court looks to "the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought." 28 U.S.C. § 2412(d)(1)(B). Where the government's position "had a reasonable basis in both law in fact" EAJA fees may not be awarded. Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 2550, 101 L. Ed. 2d 490 (1988).
Taking into account the petitioner's age, education, and residual functional capacity, the government could have no reasonable basis for arguing that she was not disabled when her transferable skills would not transfer to jobs within her residual functional capacity. Therefore, the position of the government was internally inconsistent in such a way that would not "satisfy a reasonable person." Id. Petitioner, as prevailing party, has thus satisfied all of the criteria for eligibility for fees.
D. Reasonable Attorney's Fees
The court may only order an EAJA award for attorney hours that were reasonably spent on litigation. 28 U.S.C. § 2412(d)(2)(A). A rate of $ 109.28 per hour for an attorney with 15 years experience is very reasonable, indeed conservative. Moreover 96.25 billable hours for attorney work is reasonable in light of the numerous hearings and procedures necessary to win the plaintiff her benefits.
Based on the foregoing, it is hereby ordered:
1. Plaintiff's motion for summary judgment is moot;
2. The Government's oral request, made in open court, to withdraw its motion for summary judgment is granted;
3. This court's Order Remanding Case of January 2, 1991, was invalid and did not effect a final judgment of the case;
4. Plaintiff's petition for fees is timely;
5. The Government's position was not substantially justified;
6. Plaintiff's counsel's request for fees and costs is reasonable;
7. Fees and cost to Plaintiff's counsel's shall be awarded in the amount of $ 10,518.
IT IS SO ORDERED.
DATED: MAR 16 1992
Rudi M. Brewster
UNITED STATES DISTRICT JUDGE