Holden v. Heckler

• Decision Date: 27 August 1985
• Docket Number: Civ. A. No. C84-548.
• Citation: 615 F. Supp. 686
• Parties: Norma HOLDEN, et al., Plaintiffs, and State of Ohio, Through Richard F. Celeste, Governor, Plaintiff-Intervenor, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Ohio

615 F. Supp. 686

Norma HOLDEN, et al., Plaintiffs and State of Ohio, Through Richard F. Celeste, Governor, Plaintiff-Intervenor, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

Civ. A. No. C84-548.

United States District Court, N.D. Ohio, E.D.

August 27, 1985.

David B. Dawson, Louise McKinney, Carolyn L. Carter, Legal Aid Soc. of Cleveland, Mark J. Valponi, Kelley, McCann & Livingstone, Fred P. Schwartz, Hahn, Loeser, Freedheim, Dean & Wellman, Cleveland, Ohio, for plaintiffs.

Kathleen Ann Sutula, Steven D. Bell, Michael Anne Johnson, Asst. U.S. Attys., Cleveland, Ohio, for defendant.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

The prevailing plaintiffs in this social security disability class action seek attorneys' fees, costs and expenses from the Secretary of Health and Human Services ("Secretary") under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Under the statute, fees must be awarded unless "the position of the United States" — the Secretary's substantive position and the government's litigating position — was "substantially justified." Review of the recently-amended statute, the relevant Sixth Circuit case law and the lengthy history of this action compels the conclusion that the Secretary's positions were unjustified and that an award under the EAJA is appropriate.¹

I.

The EAJA was enacted in 1980. Following enactment of the Equal Access to Justice Act Amendments ("EAJA Amendments),² 28 U.S.C. § 2412(d)(1)(A) now provides:

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, including proceedings for judicial review of agency 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.

The newly-enacted 28 U.S.C. § 2412(d)(2)(D) provides:

... "position of the United States" means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings.

And another new provision, § 206(b) of the EAJA, provides in part:

Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code....

While § 206(b) is consistent with the Sixth Circuit's view that EAJA fees were available in social security cases, Feldpausch v. Heckler, 763 F.2d 229 (6th Cir. 1985); Couch v. Secretary of Health and Human Services, 749 F.2d 359 (6th Cir. 1984) (per curiam), in several important areas the recent amendments and their accompanying legislative history modify the court of appeals' prior approach. Most significantly, 28 U.S.C. § 2412(d)(2)(D) explicitly overrules the position enunciated in Trident Marine v. District Engineer, The United States Army Corps of Engineers, Detroit District, 766 F.2d 974 (6th Cir. 1985). There the court held that the "position of the United States" referred only to the government's litigating position, not to the underlying agency position or to a hybrid of the agency position and litigating position. Id. at 977-980. The legislative history accompanying § 2412(d)(2)(D) states that this view is inconsistent with Congressional intent in enacting the EAJA:

... The term "position of the United States ..." was not explicitly defined under the prior law, causing courts much confusion as to the proper scope of an EAJA proceeding. The Committee here defines the "position" term in a way to clarify the EAJA, consistent with the original Congressional intent and the underlying purposes of the statute....

In clarifying the "position" term, the Committee expressly rejects the holding ... that the only government "position" to be scrutinized in the context of an EAJA case is that taken in the litigation itself.

This restrictive view, adopted by several ... courts of appeal has resulted in the denial of a number of meritorious fee claims, because it fails to focus attention on the unjustified government activity that formed the basis of the litigation.

If the government's litigation position was the sole consideration, the government could insulate itself from fee liability simply by conceding error or settling, because such actions will always be deemed "reasonable" litigation positions; thereby having the effect of substantially justifying their position.... Interpreting the EAJA so as to restrict its application to mere litigation arguments and not the underlying action which made the suit necessary, would remove the very incentive for careful agency action that Congress hoped to create in 1980....

The Committee's clarification of the "position" term is intended to broaden the court's ... focus of inquiry for EAJA purposes beyond mere litigation arguments, and to require an assessment of those government actions that formed the basis of the litigation. We believe this conclusion is implicit in the EAJA definition of the term "United States", which "includes any agency and any official of the United States acting in his or her official capacity" (28 U.S.C. § 2412(d)(2)(C)), rather than merely the position taken by the government's lawyers. The Committee here makes the broader view of government agency conduct explicit.

In cases where the private party is a prevailing plaintiff, the definition of "position of the United States ..." will likely include an assessment of the agency action or failure to act that forms the basis of the party's cause of action. The "action or failure to act by the agency upon which the court action ... is based" does not include mere preliminary or procedural decisions of the agency which would not be subject to judicial review. Thus, in evaluating a prevailing plaintiff's EAJA petition, the court ... will consider the agency action or failure to act that gave rise to the party's right to bring the action in a federal court ... The question that exactly constitutes such action will be determined by the court ... record of the case.

H.R.Rep. No. 99-120, 99th Cong., 1st Sess. 12-13 U.S.Code Cong. & Admin.News 1985, pp. 132, 140-141. ("House Report") (citations and footnote omitted).

Similarly, the Amendments alter the definition of "substantially justified" previously utilized by the Sixth Circuit, namely that "the governing principle of the EAJA is that the `United States' should pay those expenses which are incurred when the government presses unreasonable positions during litigation." Westerman, Inc. v. NLRB, 749 F.2d 14, 16 (6th Cir.1984) (citation omitted) (emphasis added). See also Kreimes v. Dept. of Treasury, 764 F.2d 1186 (6th Cir.1985) ("The purpose of the EAJA is to award litigants `expenses of seeking review of or defending against unreasonable government action.'"); Sigmon Fuel Co. v. Tennessee Valley Authority, 754 F.2d 162, 166 (6th Cir.1985) ("Whether or not the government's position is substantially justified is judged by the reasonableness of the government's position."); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982) (per curiam). The Report states:

Another problem which has developed in the implementation of the Act has been the fact that courts have been divided on the meaning of "substantial justification." Several courts have held correctly that "substantial justification" means more than merely reasonable. Because in 1980 Congress rejected a standard of "reasonably justified" in favor of "substantially justified," the test must be more than mere reasonableness.

Especially puzzling, however, have been statements by some courts that an administrative decision may be substantially justified under the Act even if it must be reversed because it was arbitrary and capricious or was not supported by substantial evidence. Agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act. Only the most extraordinary special circumstances could permit such an action to be found to be substantially justified under the Act.

The Committee expects that the determination of what is "substantially justified" will be decided on a case-by-case basis due to the wide variety of factual contexts and legal issues which make up government disputes.

Id. at 9-10, U.S.Code Cong. & Admin.News 1985, p. 138 (footnotes omitted) (emphasis added).

With these standards in mind, this Court turns to the history of this case and the merits of the pending application. Familiarity with this Court's numerous previous opinions is presumed. A review of the factual and legal conclusions set forth there demonstrates that neither the Secretary's actions nor the government litigating position were, in fact, substantially justified.

II.

A.

This class action concerned the policies and procedures by which the Secretary and state officials terminated disability benefits previously awarded under Title II and Title XVI of the Social Security Act ("the Act"), the Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") programs. The relevant termination provision, 42 U.S.C. § 423(a)(1)(D), provided that benefits would stop after a claimant's "disability ceases."

Reviewing the legislative history, this Court found that one important Congressional committee "consistently has read the phrase `disability ceases' to require that the claimant's medical condition actually have improved before his benefits may be terminated" — the "medical improvement...