When the Commissioner Stipulates to Remand, the Plaintiff Always Gets EAJA Fees

Sample statement from the Court:

The problem: the Court knows nothing about this case. The government stipulated to a voluntary remand of the action to the agency for further proceedings on the disability benefits application – without any substantive court involvement. (Docket # 21.) As a result, the Court has no insight into the agency’s litigation position during proceedings with the ALJ or on appeal. That’s a prerequisite to a finding that Plaintiff is entitled to fees under EAJA. And it’s not addressed anywhere in Plaintiff’s form brief.

Response -- or should be in the fee petition if it gets that far:

The Commissioner stipulated to the remand of this matter.  The Court did not have the opportunity to determine the reasonableness of the Commissioner's position.  The Court should not hear the Commissioner's assertions of reasonableness now.  The Court does not weigh the reasonableness of the issues that the Court did not address on the merits.  Hardisty v. Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010).
 The Court cannot find substantial justification in this case because to do so would require the inquiry into the merits of the Commissioner's position administratively and in forcing the matter into Court.  Hardisty precludes that inquiry.  Therefore, the Commissioner cannot sustain her burden of proof.  Floresv. Shalala, 49 F.3d 562, 569 (9th Cir. 1995). 

I submit that the upshot of the analysis is simple -- when the Commissioner stipulates to the remand of the matter, the plaintiff always prevails in the quest for reasonable fees and expenses.  This argument is tailored to Ninth Circuit caselaw.