Burt v. Heckler, Civ. A. No. 81-2895.
| Decision Date | 19 September 1984 |
| Docket Number | Civ. A. No. 81-2895. |
| Citation | 593 F. Supp. 1125 |
| Parties | Frederick BURT, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Richard E. Yaskin, Mark S. Jacobs, P.C., Voorhees, N.J., for plaintiff.
W. Hunt Dumont, U.S. Atty. by Paul Blaine, Asst. U.S. Atty., Trenton, N.J., for defendant.
Presently before the court is a motion by Frederick Burt for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. IV 1980). This motion raises the issue of whether a plaintiff whose case is remanded by the court may be considered a prevailing party. For the reasons which follow, the court finds that such a plaintiff may be considered a prevailing party and that plaintiff's motion for attorney's fees will be granted to the extent provided below.
Plaintiff Frederick Burt brought an action pursuant to § 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), for a review of a final determination of the Secretary of Health and Human Services ("Secretary") denying plaintiff disability insurance benefits. After considering the matter, the court remanded this action to the Secretary for further proceedings. The ALJ to whom the case was reassigned considered the case de novo and found that the plaintiff was under a disability beginning April 27, 1982, but not prior thereto.
Subsequently, the plaintiff submitted a Letter Memorandum to the Appeals Council arguing that the medical and vocational evidence supported an onset of disability on April 20, 1979. The Appeals Council nevertheless affirmed the decision of the ALJ.
Thereafter, plaintiff appealed to this court which reversed the decision of the Secretary and remanded with instructions to reinstate plaintiff's benefits for a period beginning in August 1979 and continuing through April 1982. The instant petition for counsel fees followed.
The Equal Access to Justice Act ("EAJA") provides in pertinent part:
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.
28 U.S.C. § 2412(d)(1)(A).
The Third Circuit has on two recent occasions written extensively construing the EAJA. Dougherty v. Lehman, 711 F.2d 555 (3rd Cir.1983); Natural Resources Defense Council v. U.S. Environmental Protection Agency, 703 F.2d 700 (3rd Cir. 1983).
Under the EAJA, in any civil action brought by or against the United States, a district court must award attorney's fees and other costs to the prevailing party (other than the United States), unless the court finds that the government has carried its burden of showing that its position was "substantially justified," or that special circumstances make an award unjust. Thus, in deciding whether to award fees under the EAJA the district court must determine which party prevailed, whether the government has carried its requisite burden, and accordingly, whether "substantial justification" for the government's position has been demonstrated.
The government has the burden of proving that "its action giving rise to the litigation was substantially justified." Id. at 561. In defining the term, "substantially justified," the Circuit was guided by the EAJA's legislative history, which reflected Congressional intent that:
First, show that there is a reasonable basis in truth for the facts alleged in the pleadings....
Second, the government must show that there exists a reasonable basis in law for the theory it propounds. This is not to say that the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed....
Finally, the government must show that the facts alleged will reasonably support the legal theory advanced...." Id. at 564.
Because the plaintiff is requesting counsel fees for both appeals in the District Court, it is necessary to determine at what time the plaintiff became a prevailing party for purposes of the EAJA.
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).
It is clear that a plaintiff whose disability benefits are reinstated by the court is a prevailing party for purposes of this motion. Watkins v. Harris, 566 F.Supp. 493, 498 (E.D.Pa.1983). However, it is not clear whether a plaintiff whose case is remanded by the court to the Secretary may be considered a prevailing party for the purposes of the EAJA.
Congress intended that "the interpretation of the term (prevailing party) be consistent with the law that has developed under existing `fee shifting' statutes, and that a party need not necessarily litigate a case to final judgment to be `prevailing' within the meaning of the Act." See U.S. Code Cong. and Admin.News 4990 1980, McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2nd Cir.1983). The law that has developed regarding these statutes has established that the phrase prevailing party should not be limited to a victor only after entry of a final judgment following a full trial on the merits. A party may be deemed prevailing if he obtains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C.Cir. 1977); if he prevails on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C. 1976); or even if he does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006; 40 L.Ed.2d 476 (1974).
The courts which have considered the issue of prevailing party in a remand of the case to the Secretary have been split. In Roman v. Schweiker, 559 F.Supp. 304 (E.D.N.Y.1983), the court determined that plaintiff was not a prevailing party entitled to fees by virtue of the temporary success of obtaining a remand. The court did not, however, indicate whether the plaintiff would be entitled to an award of fees corresponding to the preparation of the appeal if she ultimately prevailed on the merits before the Secretary. Accord McGill v. Secretary of Health and Human Services, 712 F.2d 28 (2nd Cir.1983); Hornal v. Schweiker, 551 F.Supp. 612 (M.D.Tenn. 1982).
The Court of Appeals for the Third Circuit has yet to specifically address the issue of whether a party who obtains a remand in a disability benefits action may be considered a prevailing party. However, in Swietlowich v. County of Bucks, 620 F.2d 33 (3rd Cir.1980), a case concerning a motion for attorney's fees under 42 U.S.C. § 1988, the court suggested that a party obtaining a remand could be a prevailing party for purposes of a petition for fees if he was closer to a verdict in his favor because of that remand. In Swietlowich, the district court entered judgment in favor of the defendants based upon a jury's answers to interrogatories that the statute of limitations barred recovery. The Circuit Court vacated the judgment and remanded the case for a new trial solely because of an error in the jury instructions. The court then denied the petition for fees stating that, "The plaintiff, therefore, is no closer to a verdict in her favor than she was before the first trial began, and there is no assurance that she will ever receive damages, the only relief requested." Id. at 34.
There is considerable recent authority to support a court's award of fees in a remand of a Social Security benefits action. In Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983), the court reversed the denial of benefits and remanded the matter, finding that the ALJ had failed in several respects to fulfill his duties. The court stated that because of the agency's failure to properly develop the record it was unable to award the benefits sought. Thus, the plaintiff through this remand has "obtained substantially the relief requested and under the facts of this case, the extent of relief this court had authority to render." Id. The court concluded that to deny attorney fees under those circumstances would be inconsistent with the EAJA's purpose.
In MacDonald v. Schweiker, 553 F.Supp. 536 (E.D.N.Y.1982), the court found that the ALJ's denial of benefits was appealable to the Appeals Council for review. In the subsequent petition for attorney fees and costs, the court noted that although an order of remand does not constitute a final judgment, in light of the EAJA's legislative history "there may be cases, including social security remands, where an award of fees might be appropriate although final judgment has not been entered." Id. at 539. The court then granted the petition stating that the plaintiff had essentially obtained the relief sought. Id.
In Ceglia v. Schweiker, 566 F.Supp. 118 (E.D.N.Y.1983), the court was faced with a similar situation as...
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