Trinidad v. Secretary of Health and Human Services

• Citation: 935 F.2d 13
• Decision Date: 06 June 1991
• Docket Number: No. 90-2051,90-2051
• Parties: , Unempl.Ins.Rep. CCH 16127A Jose Tapia TRINIDAD, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 13

935 F.2d 13

33 Soc.Sec.Rep.Ser. 581, Unempl.Ins.Rep. CCH 16127A

Jose Tapia TRINIDAD, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 90-2051.

United States Court of Appeals First Circuit.

Submitted Jan. 25, 1991.

Decided June 6, 1991.

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for plaintiff, appellant.

Daniel F. Lopez Romo, U.S. Atty., Jose Vazquez Garcia, Asst. U.S. Atty., and Donna C. McCarthy, Asst. Regional Counsel, Dept. of Health and Human Services, on brief for defendant, appellee.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

PER CURIAM.

Following a district court order remanding his claim to the Secretary of Health and Human Services for further proceedings, Jose Tapia Trinidad was awarded Social Security disability benefits. He then applied for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. The district court determined that an award of fees was warranted, but granted only one-tenth of the amount requested--cutting plaintiff's proposed hourly rate in half and refusing to provide any compensation for the post-remand agency proceedings. Plaintiff now appeals, challenging these reductions in his requested award. We vacate the judgment in part and remand for further proceedings.

I.

The procedural background can be briefly recounted. Plaintiff applied for benefits in September 1986, claiming disability due to heart, back, and nerve ailments. His claim was successively denied by the agency, by an Administrative Law Judge (ALJ) following a hearing, and by the Appeals Council, and plaintiff appealed to the district court. Some months later, before any substantive motions or memoranda had been filed, the Secretary requested, and the district court ordered, that the action be remanded to the agency so as "to update the medical record and to obtain testimony from a vocational expert." On remand, after conducting a supplemental hearing (at which plaintiff, a medical advisor, and a vocational expert testified), the ALJ again recommended that the claim be denied. The Appeals Council, however, this time disagreed with the ALJ's recommendation. Relying on the testimony of the medical advisor, and crediting plaintiff's complaints of pain, it concluded that plaintiff had been disabled since June 25, 1986 and that an award of benefits was warranted. In light of this ruling, the district court, pursuant to the Secretary's motion, subsequently entered a judgment dismissing the action.

Following the Appeals Council's decision, plaintiff submitted a request for attorneys' fees under the EAJA. The amount requested--$2,076.37--was based on 24.5 hours and a rate of $84.75 per hour. The hourly rate reflected the statutory standard of $75 per hour (discussed infra ) plus a thirteen percent cost-of-living adjustment. The number of hours, as documented in an itemized statement from counsel, reflected work performed both in the district court and during the post-remand administrative proceedings. In response, the Secretary did not dispute the appropriateness of a fee award or the number of hours expended; he objected solely on the ground that the requested hourly rate was excessive. The district court concurred, noting that plaintiff's submissions to the court were merely "boilerplate," devoid of "novelty" or "individuality"; it concluded that a rate of $40 per hour was reasonable. Of the 6.75 hours claimed by plaintiff's attorney with respect to the district court appeal, the court deemed 5.5 hours to have been reasonably expended. And, even though the government had not objected thereto, the court declined to award fees for the work performed before the agency. An award of $220 was therefore ordered.

Plaintiff now contends that the court abused its discretion in (1) excluding from its award the time spent in the post-remand agency proceedings, and (2) cutting his requested hourly rate in half.

II.

The EAJA provides in relevant part as follows:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., 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.

28 U.S.C. Sec. 2412(d)(1)(A). Once a claimant has established "prevailing party" status, ¹ therefore, the government can defeat a fee award only by demonstrating that its position was "substantially justified" or that "special circumstances" make an award unjust. See, e.g., Commissioner, I.N.S. v. Jean, --- U.S. ----, 110 S.Ct. 2316, 2319, 110 L.Ed.2d 134 (1990); McDonald v. Secretary of Health and Human Services, 884 F.2d 1468, 1469-70 (1st Cir.1989); see also, e.g., Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir.1991) (government has burden of proving substantial justification or special circumstances); De Allende v. Baker, 891 F.2d 7, 12 (1st Cir.1989) (same). If the government can make neither showing, an award of fees to a prevailing party is "mandatory." Love, 924 F.2d at 1495; accord, e.g., Russell v. Sullivan, 930 F.2d 1443, 1445, (9th Cir.1991); Smith by Smith v. Bowen, 867 F.2d 731, 734, 735 (2d Cir.1989); McDonald, 884 F.2d at 1469 (if eligibility criteria met, government "must foot the legal bills of its adversaries in civil cases").

In the instant case, the government did not dispute plaintiff's status as a prevailing party, and did not contend either that its position was substantially justified or that an award would be unjust because of special circumstances. Nor did the government oppose plaintiff's request for attorney's fees in connection with the work performed during the agency proceedings on remand. The district court, nonetheless, denied this request, "inasmuch as evaluating such efforts would be purely speculative." It suggested instead that plaintiff "directly petition the agency for those fees." We think the court abused its discretion in this regard.

In Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the Supreme Court addressed this very issue, ruling that a Social Security claimant was entitled to attorney's fees in connection with administrative proceedings held pursuant to a district court order remanding the action to the Secretary. Pointing to the "unusual" degree of "direct interaction" between the court and agency contemplated by the judicial review provisions of the Social Security Act, 42 U.S.C. Sec. 405(g), the Court concluded that the EAJA's reference to "civil action" encompassed the remand proceedings. Id. at 885, 109 S.Ct. at 2254. The Court cited several factors in reaching this conclusion. First, whether the claimant attained "prevailing party" status was contingent on the successful completion of the remand proceedings. Second, there would often be no "final judgment," as that term is used in the EAJA, see note 1 supra, until the proceedings on remand were completed. Third, the district court had included specific instructions in its remand order, and had retained jurisdiction over the case. Finally, the remand proceedings were "crucial to the vindication of [claimant's] rights," id. at 889, 109 S.Ct. at 2256, quoting Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439 (1986), and the services of an attorney on remand were "necessary ... to ensure compliance with the district court's order." 490 U.S. at 889, 109 S.Ct. at 2256. For these reasons, the proceedings on remand were so "intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees" that they could be considered "part and parcel of the action for which fees may be awarded." Id. at 888, ² 109 S.Ct. at 2255.

While it is thus clear that attorney's fees may be awarded for Social Security remand proceedings, it is less clear under what circumstances a district court can decline to make such an award. Two concluding comments by the Hudson Court bear on this question. The Court first observed:

Where a court finds that the Secretary's position on judicial review was not substantially justified within the meaning of the EAJA, ... it is within the court's discretion to conclude that representation on remand was necessary to the effectuation of its mandate and to the ultimate vindication of the claimant's rights, and that an award of fees for work performed in the administrative proceedings is therefore proper.

Id. at 890, 109 S.Ct. at 2257 (emphasis added). And in its closing paragraph, the Court stated:

We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's entitlement to benefits, the proceedings on remand are an integral part of the "civil action" for judicial review and thus attorney's fees for representation on remand are available subject to the other limitations in the EAJA.

Id. at 892, 109 S.Ct. at 2258 (emphasis added).

The government points to the first quoted statement to argue that a district court retains considerable discretion under Hudson to determine whether fees for post-remand proceedings should be awarded, and that the district court here acted well within that discretion in declining to do so. With the second half of this contention at least, we disagree. The reasons cited by the district court in explaining its refusal to award such fees seem not at all pertinent to the Hudson analysis. It is unclear what the court meant when it characterized as "purely speculative" any attempt to evaluate counsel's efforts on remand. To the extent it was...