Vascera v. Heckler, C.A. No. 82-0465-S.

• Decision Date: 16 January 1986
• Docket Number: C.A. No. 82-0465-S.
• Citation: 624 F. Supp. 1198
• Parties: Richard VASCERA, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendants.
• Court: U.S. District Court — District of Rhode Island

624 F. Supp. 1198

Richard VASCERA, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendants.

C.A. No. 82-0465-S.

United States District Court, D. Rhode Island.

January 16, 1986.

McKenna, Greenwood & Feinstein, Charles Greenwood, R.B. Feinstein, Carole L. Gray, Providence, R.I., for plaintiff.

Everett C. Sammartino, Ass't U.S. Atty., Providence, R.I., Samuel C. Fish, Regional Atty., Health and Human Services, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

SELYA, District Judge.

This case presents a question regarding the current entitlement of the plaintiff, Richard Vascera, to recover counsel fees under 28 U.S.C. § 2412(d)(1)(A), a central provision of the Equal Access to Justice Act (EAJA). At the times material hereto,¹ the statute intoned in pertinent part that:

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 (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) (1982).

I. BACKGROUND

The Secretary's 1982 final decision, from which this action arose, denied social security disability insurance benefits and supplementary security income payments to Richard Vascera. The claimant, contending that the Secretary's edict was not bottomed upon substantial evidence in the record, filed suit to secure a reversal of that decision, or alternatively, to win a remand of the claim to the agency. The matter was heard before a magistrate of this court on cross motions for summary judgment, reference having been made pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate recommended that the case be returned to the Secretary for further elucidation of the pertinent medical data. On October 9, 1984, this court adopted the magistrate's recommendation and ordered a remand for augmented evidentiary proceedings and further findings. See 42 U.S.C. § 405(g).

Having succeeded to this limited extent, Vascera (without awaiting the outcome of the further proceedings before the agency) moved for an award of attorneys' fees under § 2412(d)(1)(A) of the EAJA, quoted ante. This motion was likewise heard before the magistrate ancillary to the 28 U.S.C. § 636(b)(1)(B) reference. On November 15, 1985, the magistrate issued a supplementary report and recommendation (Report) suggesting that such fees be awarded. Report at 6. The Secretary seasonably objected. This court entertained oral argument on January 10, 1986 and took the matter under advisement at that time.

II. CONTENTIONS OF THE PARTIES

It is by now settled beyond peradventure that the EAJA applies to suits prosecuted in federal courts by those who, having been denied social security disability benefits at the administrative level, garner such emoluments as a result of judicial review. See, e.g., Cornella v. Schweiker, 728 F.2d 978, 982-83 (8th Cir.1984); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir.1983); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983); McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984).² (EAJA awards do not, of course, pertain to services rendered before the agency; on its face, the Act applies only to "court" proceedings.) The narrower question which lies at the threshold of this application is whether Vascera became a "prevailing party" within the reach of the EAJA when he succeeded in procuring from this court an order remanding his claim to the Secretary for the taking of additional evidence.

The plaintiff's argument is that the fundamental purpose of the EAJA is to balance the scales of justice by correcting inequities between the United States and private litigants of relatively modest means. Thus, the plaintiff reasons, where a claimant is successful in annulling the results of a tainted or inadequate administrative proceeding, the goals of the EAJA are furthered by bestowal of counsel fees, notwithstanding that the plaintiff has "won" nothing more than a de novo hearing.

The Secretary's position is equally simple and direct. She asseverates that, unlike proceedings brought under, say, 42 U.S.C. § 1983, the raison d'etre of social security claims is to secure social security payments —not to vindicate procedural due process rights. It follows, in the Secretary's view, that a plaintiff cannot be said to have "prevailed" in the EAJA sense unless and until he has attained an award of such benefits. The Secretary therefore sees attorneys' fees as inappropriate in this case at this time because, despite the remand, the pivotal question — Vascera's entitlement vel non to disability benefits — is as yet unresolved.

III. THE REPORT

As previously noted, these conflicting contentions were presented to the magistrate. The magistrate accepted the plaintiff's thesis, but placed his own gloss upon it. He reasoned that a claimant who has successfully prosecuted a motion for remand should be eligible to apply for the comforting balm of a fee-shifting anodyne, and it should be forthcoming (assuming that the government's position was not "substantially justified" within the meaning of the Act) "where remand relief was obtained by the plaintiff through efforts of extraordinary circumstance." Report at 3.

In this case, the magistrate divined the existence of such efforts from a variety of facts which find support in the record, viz., Vascera was an uneducated applicant, he was not fluent in the English language, he was not represented by counsel before the agency, and the administrative law judge (ALJ), "by not fully developing the medical record, denied the plaintiff a fair hearing." Id. at 4. The magistrate further found that the Secretary's position lacked the requisite justification, id. at 4-5, and proceeded to assess the reasonable amount of the fees to be awarded. Id. at 6.

IV. DISCUSSION

A. The Caselaw

In the early days following enactment of the EAJA in 1981, the legal landscape was indistinct in respect to whether or not a social security claimant "prevailed" within the meaning of the Act when he convinced a court to overturn an unfavorable decision by the Secretary and to order a new administrative hearing. Compare Miller v. Schweiker, 560 F.Supp. 838, 840 (M.D.Ala. 1983) (no entitlement to fees) and Roman v. Schweiker, 559 F.Supp. 304, 305 (E.D.N. Y.1983) (same) with Ceglia v. Schweiker, 566 F.Supp. 118, 121 (E.D.N.Y.1983) (fees awarded) and Gross v. Schweiker, 563 F.Supp. 260, 262 (N.D.Ind.1983) (same). In late 1983, however, the Second Circuit's decision in McGill, 712 F.2d at 30-32, defined the contours of the terrain with considerable precision. The McGill panel, after analyzing the legislative history of the EAJA and the relevant caselaw, held (id. at 31-32):

Regardless of the wording of the complaint or the actual relief sought in the district court, generally speaking, a social security claimant prevails when it is determined that she is entitled to benefits. ... While it is true that a favorable ruling on plaintiff's procedural claim that the ALJ should have conducted a more thorough hearing may ultimately affect the outcome of the merits of plaintiff's disability claim, nevertheless, her procedural claim is not a matter on which plaintiff can be said to prevail for the purpose of shifting counsel fees. (citations omitted).

McGill was promptly adopted by the First Circuit. See Roy v. Secretary of Health and Human Services, No. 83-1205 (1st Cir. October 17, 1983) (per curiam) (unpublished order of court) ("We agree with the Second Circuit that a remand of the type involved in this case does not itself make appellant a `prevailing party' within the meaning of 28 U.S.C. § 2412(d)."). But, the struggle was far from over. Certain district courts outside of the Second Circuit either declined to follow the reasoning of McGill or endeavored to distinguish it. E.g., Burt v. Heckler, 593 F.Supp. 1125, 1128 (D.N.J.1984).

Further authoritative support for the government's position emerged in Brown v. Secretary of Health and Human Services, 747 F.2d 878, 881-83 (3d Cir.1984). The Third Circuit, affirming the district court's denial of counsel fees to a petitioner who had won a judicial remand for a de novo hearing pursuant to 42 U.S.C. § 405(g) because the Secretary's decision was not based on substantial evidence, noted that "although such a claimant may request, in the alternative, relief other than his or her ultimate goal (the receipt of benefits), it is the receipt of those benefits that renders a typical Social Security plaintiff a prevailing party." 747 F.2d at 883. Accordingly, the court held:

When a court vacates an administrative decision and remands the matter for reconsideration, the successful party generally should not recover attorney's fees at that particular time since the claimant's rights and liabilities and those of the government have not yet been determined.

Id.

Hot on the heels of Brown, yet another court of appeals joined in the McGill parade. In Cook v. Heckler, 751 F.2d 240, 241 (8th Cir.1984), the Eighth Circuit opined that, "for purposes of an attorney fee award under EAJA it is not enough for a Social Security claimant to have won a remand to the Secretary for further administrative proceedings on the merits." Cook, a case in which the Secretary committed multiple errors of the most egregious sort³, stands as particularly strong authority for a bright line rule. See also Kemp v. Heckler, 777 F.2d 414 (8th Cir. 1985) (per curiam) (following Cook). The holding in Cook has been specifically endorsed by the court of appeals for this circuit. See Tuccinardi v. Secretary of Health and Human Services,...