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).? 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 concems 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 (9" Cir.
1992).

I.
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

clarified that she received the SSA notice on May 5, 2004 and obtained a copy of the summary judgment ruling on
May 7, 2004 (PI.’s Reply Mem. at 2); the filing of the petition on May 10 satisfied the seven-day period when measured
from either date.

*Tronically, the plaintiff objects to this use of Rule 4(a)(6) (PI. Reply Mem. at 2), but offers no viable method
for dealing with this unusual situation. Because we find that Rule 4(a)(6) provides the best fit in this situation, we apply
ithere while recognizing that something ofa fiction is involved because we are reopening the time to appeal a judgment
that plaintiff, undoubtedly, would not want to appeal since she won, and that already is before the SSA once again, and
a judgment that the Government cannot appeal because it had notice of the Court’s ruling and thus cannot satisfy the
requirements of Rule 4(a)(6). Thus, here, the limited purpose for reopening the approval period is to allow for the filing
of plaintiff's EAJA petition to be deemed timely.



ALJs to build a “logical bridge for their decisions,” and what that requires, we do not believe that
the Government was substantially justified in arguing that the ALI satisfied that requirement here.
CONCLUSION

For the reasons given above, the time for appeal from the Rule 58 judgment that took effect
as a matter of law on January 26, 2004, shall be reopened, and the present petition allowed (doc.
#32), as falling within the extended 14-day period allowed by Fed.R.App.P. 4(a)(6). The Court also
finds that Ms. Herron’s fee petition (doc. # 35) is granted in the amount requested: $6,396.75,
pursuant to 28 U.S.C. § 2412(d).4

ENTER:

NO 7 40

stone I. sq ENKIER
United rt sii Magistrate Judge

Dated: June 18, 2004

4The Court notes that, although the government contested the merits of plaintiff's fee petition, it did not contest
the amount of fees requested.


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
ift

(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.

Fed.R.App.P. 4(a)(6)(A)-(C).
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.' And, the petition was filed within seven days after the plaintiff received notice

‘Plaintiff's counsel states that she first received notice of the summary judgment ruling through a notice from
the SSA in “May 2004" (P1.’s Pet, at 2). The Government suggests that this is not sufficient to verify that the May 10
petition was filed within the prescribed seven-day period (Def. Mem. at 3). We disagree. Rule 26(a) of the Federal
Rules of Appellate Procedure, like Rule 6(a) of the Federal Rules of Civil Procedure, provides that when a Rule
prescribes a time period of fewer than 11 days, weekends and holidays are excluded from the calculation. Since May
1-2 and 8-9, 2004 were weekend days, there is no question that the filing of the petition on May 10 was within seven days
(as counted under the Rules) of the plaintiff receiving notice of the judgment. In any event, the plaintiff has since

3



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 (7" 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 (7" Cir. 2000) (citing
Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 (7" 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 (7" Cir. 1983) (“Congress .. . made clear, . . . that, merely

because the government loses a case, a presumption does not arise that the government’s position



Minute Order Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sidney I. Schenkier

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 4516 DATE 6/18/2004
CASE Herron vs, Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer briefdue___.
(4) o Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) o Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to___—_at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CIFRCP41(a)(1) OO FRCP41(a)(2).

(do) [Other docket entry} Enter Memorandum Opinion and Order. For the reasons stated in the attached

Memorandum Opinion and Order, the time for appeal from the Rule 58 judgment that took effect as a matter of

law on January 26, 2004, shall be reopened, and the present petition allowed (doc. # 32), as falling within the

extended 14-day period allowed by Fed.R.App.P. 4(a)(6). The Court also finds that Ms. Herron’s fee petition
28 U.S.C. § 2412(d).

(doc. # 35) is granted in the amount requested:-$6,396.75, pursuant
Z M4
qi) a [For further detail see order (Yn reverse cia/oFetached to) the original minute order.]

No notices required, advised in open court

No notices required.
req number of notices

UN 27 209

date dockerePy

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Saar yng
courtroom ca uy Stahl O02
mm deputy’s en *
initials

Date/tippe, received in ¢
central Clerk's Office
wa

mailing deputy initials



was not substantially justified”). See also Young v. Sullivan, 972 F.2d 830 (7" Cir. 1992); Kolman
v. Shalala, 39 F.3d 173 (7" Cir. 1994); Jackson v. Chater, 94 F.3d 274 (7" 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 ALT 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 the Government argues now.
We view the ALJ’s errors as mistaken interpretations of the medical, factual evidence before him
that go directly to the issue of whether Ms. Herron is disabled.

The Court also disagrees with the Government’s argument that fees cannot be awarded here
because “the Court did not find against the Commissioner on the ultimate issue in this case, namely
whether Plaintiff is disabled as defined by the regulations” (Def.’s Mem. at 5). The Court did not
reach the “ultimate issue in this case” because the ALJ’s written determination failed to build “a
logical bridge from the evidence to [the] conclusion.” Zurawski, 245 F.3d at 887. Without a
comprehensive rationale to follow, the Court cannot pass on the ultimate issue of disability.

Moreover, given the Seventh Circuit’s numerous decisions consistently emphasizing the need for

>Yo the extent that the government also argues that Ms. Herron is not a “prevailing party” because we did not
reach the ultimate issue of disability (i.e., did not outright reverse the Commissioner's decision), that argument is without
merit. A remand, for any reason, is sufficient to render the plaintiff a “prevailing party” on appeal because the remand
order constitutes a Rule 58 final judgment, therefore satisfying BAJA, 28 U.S.C. § 241 2(a)(2)(H) for “prevailing party”
status. See Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2631-32 (1993).

6


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SAVANNAH HERRON, )
)
Plaintiff, )
) No. 02 C 4516
vs. ) Magistrate Judge Schenkier
)
JO ANNE B. BARNHART, )
Commissioner of Social Security, )
)
Defendant. ) BOCKETED

JUN 2 1 2004
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.

IL

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 (P1.’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, plaintiffs 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 plaintiffs
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