The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff's counsel brings this application, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for attorney's fees incurred in relation to the litigation underlying the court's decision in Howard v. Astrue, No. 07-CV-1558 (NG), 2007 WL 4326788 ("Howard I") (E.D.N.Y. Dec. 7, 2007). For reasons discussed below, the motion is granted in part and denied in part.
While the facts of the prior litigation are set forth in Howard I, only those facts necessary to resolution of plaintiff's counsel's request for attorney's fees are recited here.
On April 11, 2007, plaintiff, proceeding pro se, brought Howard I pursuant to Title II of the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), that plaintiff was not entitled to a waiver of the government's recovery of an overpayment of Supplemental Security Income ("SSI") benefits. On July 24, 2007, plaintiff's counsel, Carolyn A. Kubitschek, Esq. appeared on plaintiff's behalf.
While plaintiff's appeal to this court was pending, the Social Security Administration (the "SSA") began to garnish plaintiff's wages in order to recover some of the benefits it had concluded were erroneously paid to plaintiff. On October 18, 2007, prior to the decision in Howard I, the court approved a stipulation between the parties suspending garnishment of plaintiff's wages up to and including December 17, 2007.
On December 7, 2007, the court issued an order upholding the ALJ's ruling that plaintiff was not entitled to a waiver of repayment. However, the court remanded the action in order for the ALJ to fully develop the record with respect to any impairment-related work expenses incurred by plaintiff and to consider the effect of these expenses on the amount of overpayment owed. Howard I, 2007 WL 4326788, at *6.
On March 7, 2008, plaintiff filed a motion to hold the Commissioner in contempt of court, asserting that the Commissioner had improperly resumed garnishing plaintiff's wages in advance of any reconsideration by the ALJ. On March 10, 2008, the court enjoined the Commissioner from garnishing plaintiff's wages.*fn1 This application followed.
The EAJA provides that attorney's fees and costs may be recoverable by a "prevailing party" in "any civil action . . . brought by or against the United States" unless the fee award would be unjust or unless the position taken by the United States was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). Here, the parties do not dispute that the plaintiff is a prevailing party. See Shalala v. Schaefer, 509 U.S. 292, 300 (1993) ("No holding of this Court has ever denied prevailing party status . . . to a plaintiff who won a remand order pursuant to sentence four of § 405(g)."). Once a plaintiff is deemed a "prevailing party," the government's burden is to demonstrate, by a "strong showing," that it was substantially justified in its position; in other words, that it was justified to a degree which could satisfy a reasonable person and that its position had a reasonable basis in both law and fact. Pierce v. Underwood, 487 U.S. 552, 565-66 (1988); Envtl. Def. Fund, Inc., v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983); see also 28 U.S.C. § 2412(d)(1)(B).
A court cannot assume that the Commissioner's position was not substantially justified simply because the case was remanded for further proceedings. See Cohen v. Bowen, 837 F.2d 582, 586 (2d Cir. 1988). Rather, the government may take a position, or pursue a litigation, that is substantially justified, even if it is incorrect or unsuccessful. See Scarborough v. Principi, 541 U.S. 401, 415 (2004). Where the government is substantially justified in the underlying litigation, a court may issue fees "for those portions of a lawsuit in which the litigant spends time overcoming unreasonable litigating positions taken in defense of the agency's ruling." Smith v. Bowen, 867 F.2d 731, 732, 735 (2d Cir. 1989) ("A District Court still ha[s] authority to award EAJA fees . . . [i]f it [finds] that the Government's position in any segment of the litigation was not substantially justified."). This approach underscores the policy that "the government should be discouraged from engaging in dilatory or otherwise unacceptable litigation tactics" at all phases of litigation, not merely when initially bringing the action. Id.
B. The Commissioner's Howard I Litigation Positions
In Howard I, the Commissioner's underlying position was that plaintiff was not without fault in causing an overpayment of benefits, and was required to repay that overpayment. Both the ALJ and this court agreed. While it is "conceivable" that the government "could take a position that is not substantially justified, yet win," the government's success is indicative of justification. Pierce, 487 U.S. at 569. Plaintiff's counsel does not claim that the government was not substantially justified in its position in this portion of the litigation, and, in any event, the court concludes that the Commissioner's position that plaintiff was not without fault was both reasonable and substantially justified. Nonetheless, as seen below, ...