Ward v. Schweiker, 81-0650-CV-W-1.

• Citation: 562 F. Supp. 1173
• Decision Date: 15 April 1983
• Docket Number: No. 81-0650-CV-W-1.,81-0650-CV-W-1.
• Parties: Thelma WARD, Lois Ann Todd, and Ruth E. Mayhue, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Missouri

562 F. Supp. 1173

Thelma WARD, Lois Ann Todd, and Ruth E. Mayhue, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

No. 81-0650-CV-W-1.

United States District Court, W.D. Missouri, W.D.

April 15, 1983.

James Marshall Smith, Legal Aid of Western Mo., Kansas City, Mo., for plaintiffs.

Robert G. Ulrich, U.S. Atty., Judith M. Strong, Asst. U.S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES AND OTHER EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on plaintiffs' application for attorney's fees and other expenses pursuant to Section 204(a) of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (West Supp.1981). The parties stipulated on January 13, 1983 that plaintiffs' counsel, of the office of Legal Aid of Western Missouri, has expended a minimum of 49.25 hours in the preparation and handling of this case and that the requested sum of $3,693.75 is reasonable. However, that stipulation expressly stated that "defendant does not concede that an award of attorney's fees is appropriate in this case and in fact contests the same." We grant plaintiffs' application for the reasons stated in this memorandum opinion.

II.

Plaintiffs' complaint, filed August 27, 1981, challenged the alleged failure of the Social Security Administration (SSA) to promptly process their Supplemental Security Income (SSI) claims under Title XVI of the Social Security Act, Section 1631(c)(2), 42 U.S.C. § 1383(c)(2); the Administrative Procedure Act, 5 U.S.C. §§ 554, 555 and 701, et seq.; and the due process clause of the Fifth Amendment to the United States Constitution. Jurisdiction was premised on 28 U.S.C. §§ 1361, 1331 and 42 U.S.C. §§ 1383(c)(3), 405(g). The complaint prayed for declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202 and Rule 65 of the Federal Rules of Civil Procedure, and certification of a class action under Rule 23(a) and (b)(2), Fed.R.Civ.P.; the proposed class to encompass Region VII of the Department of Health and Human Services (HHS) (Missouri, Kansas, Nebraska and Iowa). The three named plaintiffs, residents of Jackson County, Missouri, alleged that they had requested hearings before the defendant relating to non-disability issues, but that decisions on their claims were not reached within ninety days of the requests. The alleged class was to include all persons similarly situated within the specified geographical region. On December 15, 1982, the parties filed a stipulated dismissal without prejudice under Rule 41(a)(1)(ii), Fed.R. Civ.P. The stipulated dismissal expressly preserved for judicial resolution any application by plaintiffs for attorney's fees.

Defendant contests plaintiffs' application for attorney's fee on three separate grounds: (1) that its position in this litigation was substantially justified; (2) that plaintiffs were not "prevailing parties," and (3) that plaintiffs did not "incur" attorney's fees within the meaning of the EAJA. We will treat those grounds in reverse order.

A. Fees Incurred by Plaintiffs

Section 2412(d)(1)(A) of Title 28, United States Code, 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) 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.¹

Defendant contends that because plaintiffs in this case were represented on a pro bono basis by Legal Aid of Western Missouri, "they did not incur attorney's fees or other expenses within the meaning of the EAJA." Defendant's response in opposition at p. 5.

With near unanimity, those courts that have been faced with the issue have concluded that prevailing parties represented by legal aid organizations may qualify for attorney's fees under the EAJA. See Hornal v. Schweiker, 551 F.Supp. 612 (Tenn. 1982); Underwood v. Pierce, 547 F.Supp. 256 (C.D.Cal.1982); Hoang Ha v. Schweiker, 541 F.Supp. 711 (N.D.Cal.1982); Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y. 1982); Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982); Scruggs v. Schweiker, No. 80-3041 (M.D.Tenn., slip op. October 28, 1982).

Defendant relies upon an alternative holding in an unpublished memorandum opinion, Cornella v. Schweiker, 553 F.Supp. 240 (D.S.D.1982), which relied heavily upon a slip opinion by Judge Coffrin in Kinne v. Schweiker, No. 80-81 (D.Vt. June 30, 1982) (Kinne II). Kinne II was subsequently vacated in Kinne v. Schweiker, No. 80-81 (D.Vt. Dec. 29, 1982) (Kinne III), wherein Judge Coffrin expressly disavowed his earlier conclusion as inconsistent with the remedial purposes of the EAJA and instead followed Hornal v. Schweiker, supra, which had specifically rejected Kinne II.

The EAJA must be read consistent with its remedial purpose to reduce the strong economic deterrents to contesting unreasonable government conduct. See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5, 10-11, reprinted in 1980 U.S.Cong. & Adm.News at 4953, 4984, 4989-90. That remedial purpose would not be served by excluding from the EAJA's purview those cases in which the contesting parties are represented by legal aid organizations. Moreover, other provisions of the EAJA militate against such a conclusion. Section 2412(d)(1)(B), which outlines the procedures to be followed in fee applications under § 2412(d), makes reference to "an itemized statement from any attorney or expert witness representing or appearing in behalf of the party." (Emphasis added) Section 2412(d)(2)(A) provides for computation of fees and expenses based upon prevailing market rates without reference to the fee arrangement between attorney and client. See H.R.Rep. No. 96-1418, supra, at 4994. It would therefore be anomalous to read § 2412(d) as turning on the technicalities of any private fee arrangement.

We can discern no sufficient basis under the EAJA for departing from the rule enunciated in Oldham v. Ehrlich, 617 F.2d 163, 168 (8th Cir.1980).² Accordingly, we find and conclude that plaintiffs have incurred attorney's fees and expenses in this case within the meaning of § 2412(d)(1)(A).

B. Prevailing Parties

Defendant contends that plaintiffs cannot be found to have prevailed in this case because "the parties were never on truly opposite sides of an issue" and because "the Stipulated Dismissal did not call for the Social Security Administration to do anything substantially different from what it was already doing to assure prompt hearings in compliance with the Act 42 U.S.C. § 1383(c)(2)." Defendant's response in opposition at pp. 4-5.

In support of this contention, defendant makes reference to the regulations implementing § 1383(c)(2) codified at 20 C.F.R. § 416.1453(b) (1981). Those regulations, however, are not nearly so detailed as the provisions of the stipulated dismissal. More important, the regulations do not establish procedures for implementation of § 1383(c)(2); rather they are interpretive: providing, for example, for an exception where good cause is shown. See §§ 416.1453(b)(1)(ii) and (2).

The stipulated dismissal, on the other hand, provides detailed and enforceable procedures designed to effectively implement section 1383(c)(2), including: screening of cases by the Hearing Office Manager; specially marking 90-day cases; prompt assignment of cases to an Administrative Law Judge (ALJ) within ten days of a hearing request; requiring ALJ travel to hear certain 90-day cases; maintenance of lists of 90-day cases by the Hearing Office Manager and weekly monitoring of those lists by the ALJ in charge; issuance of an action memorandum to ensure timely receipt of hearing requests; and preparation, for filing in this Court, of two consecutive reports demonstrating the effectiveness of the stipulated procedures in the actual processing of 90-day cases.

The stipulated dismissal in this case was obviously patterned on the almost identical stipulated dismissal in Quintana v. Harris, No. 78-397-JB (approved and ordered by the district court on May 8, 1981), a case prosecuted by New Mexico Legal Services. Plaintiffs aver that the stipulated procedures were effective in arresting the delay in that jurisdiction.³

We find and conclude that plaintiffs have substantially achieved their objectives in this litigation. See United States for Heydt v. Citizen's State Bank, 668 F.2d 444, 447 (8th Cir.1982). This case clearly served as the catalyst for defendant's agreement to enforceable and verifiable procedures designed to implement § 1383(c)(2). See United Handicapped Federation v. Andre, 622 F.2d 342, 347 (8th Cir.1980); Williams v. Miller, 620 F.2d 199, 202 (8th Cir.1980). Defendant has contended all along — and indeed argues that he was substantially justified in contending — that § 1383(c)(2) is properly construed as directory only. The obvious effect of the stipulated dismissal, however, is to affirm this Court's jurisdiction over the stipulated procedures for processing non-disability SSI claims. For manifestly this Court has the power, and if necessary would have the duty, to enforce the provisions of the stipulated dismissal. See ARO Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir.1976), cited in 5 J. Moore, Moore's Federal Practice § 41.024 (2d ed. 1976).

For the reasons stated, we find and conclude that plaintiffs were prevailing parties in this case.

III. Substantial Justification

A.

In this part of our memorandum opinion, it will be necessary to set out in some detail the procedural history of the case. The files and records in...