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September 10, 1984


The opinion of the court was delivered by: Getzendanner, District Judge.


This action was brought under 42 U.S.C. § 405(g) for review of the termination of plaintiff's Social Security Disability Benefits. On January 26, 1984, this court remanded the case to the Secretary of the Department of Health and Human Services for further consideration of whether plaintiff's mental retardation, coupled with his other impairments, renders him incapable of engaging in substantial gainful activity, despite demonstrated improvements in his physical condition since the initial disability determination in 1973. The case is now before the court on plaintiff's motion for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) ("EAJA"). Section 2412(d)(1)(A) is applicable to this case, as its repeal affects only those cases filed after October 1, 1984.

Under this provision, a "prevailing party" may recover fees and expenses in a civil action brought by or against the United States unless the court finds that the position of the United States was substantially justified or that other special circumstances would make a fee award unjust. Plaintiff claims that because his federal action resulted in a remand to the Secretary, he is a "prevailing party" under the EAJA. Further, plaintiff claims that the position of the Secretary in this case was not substantially justified, as she ignored one of her own policy statements regarding mental retardation. Finally, plaintiff claims that no special circumstances render the award unjust in this case.

As is required under the EAJA, plaintiff has submitted an itemized statement of the time expended in this case, the rate at which fees were computed, and the total fee requested. Plaintiff has correctly demanded fees only for the time spent representing plaintiff in the district court. Berman v. Schweiker 713 F.2d 1290, 1293 (7th Cir. 1983); Cornella v. Schweiker 728 F.2d 978, 988 (8th Cir. 1984). Plaintiff's attorney, Robert Hodge, requests a total fee of $1,650.00.

The Secretary's response, filed almost three months after the petition was filed, contains numerous objections to plaintiff's petition. The court will now consider these objections.

EAJA's Applicability to Fees in § 405(a) Cases

The Secretary argues that:

  When attorneys' fees are specifically provided for by
  the Social Security Act, the EAJA cannot operate as an
  additional or alternative source of attorney fee
  awards. Section 206(b)(1) of the Social Security Act
  provides for attorneys' fees where, as here, a
  plaintiff has prevailed in a claim for past-due

(Memorandum in Opposition to Fee Petition p. 2.) Observing that § 406(b)(1) provides that where the court awards attorney's fees, "no other fees may be payable," and that the EAJA provides for fee awards "[e]xcept as otherwise specifically provided by statute," the Secretary concludes that fees under the EAJA are inappropriate in this case.

In Berman v. Schweiker, 531 F. Supp. 1149, 1151 (N.D.Ill. 1982), aff'd on other grounds, 713 F.2d 1290 (7th Cir. 1983), a court in this district squarely rejected this argument. (The Secretary declined to appeal the issue of whether the EAJA applied to Social Security disability cases. 713 F.2d at 1294 n. 12.) The Eighth Circuit has recently joined the Fourth, Ninth, and the Second Circuits in finding that the EAJA applies to Social Security Act cases. Cornella v. Schweiker, 728 F.2d 978, 987 (8th Cir. 1984); Wolverton v. Heckler, 726 F.2d 580 (9th Cir. 1984); Guthrie v. Schweiker, 718 F.2d 104, 107-08 (4th Cir. 1983); McGill v. Secretary, 712 F.2d 28, 30 (2d Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). A clear reading of the two statutes demonstrates that this conclusion is incontestable. Section § 406(b) does not shift fees to the government, but regulates the private fee arrangements of the claimant and his or her attorney. The legislative history of the EAJA reveals that the Act's conditional language addresses other fee-shifting statutes. That no other fee is payable further regulates these private arrangements, ensuring that the claimant's attorney does not ask for fees additional to the statutory maximum. (Indeed, criminal sanctions are prescribed for violations of this provision. 42 U.S.C. § 406(b)(2).) The court concludes, therefore, that the EAJA is applicable to cases brought under § 405(g).

Timeliness of Plaintiff's Petition

The Secretary argues that plaintiff's fee petition was not filed "within thirty days of final judgment," as is required under § 2412(d)(1)(B). This court's memorandum opinion and order was dated January 26, 1984, and the fee petition filed on March 13, 1984. The court agrees with plaintiff that in this case, "final judgment" was upon the expiration of the government's time to appeal, which in this case is 60 days after the district court decision. Fed.R.App.P. 4(a)(1). The petition is therefore timely.

The holding of and strong language in McDonald v. Schweiker, 726 F.2d 311 (7th Cir. 1983), renders almost frivolous the Secretary's position on the timeliness issue in this case. In McDonald, the claimant filed a fee petition within 30 days of a voluntary dismissal of the Secretary's appeal. The Court held that the "final decision" under the EAJA meant the completion of appellate proceedings. 726 F.2d at 315. Where no appeal is filed, the completion of appellate proceedings is simply the expiration of the time in which to appeal.

The Secretary distinguishes this case with that in McDonald, in effect arguing that claimants must be forced to guess whether the Secretary will appeal or not. However, no principled distinction can be made between the case in McDonald and that before the court, allowing a petition in the former after the disposition of an appeal, but rejecting a petition in the latter before expiration of the time in which an appeal must be filed where no appeal was subsequently taken. Such a result in the latter case would equally "deliver[] into the hands of the government a potent, acknowledged, and from the standpoint of the policy of the Equal Access to Justice Act perverse weapon for discouraging meritorious fee applications." McDonald, 726 F.2d at 315. According to the Seventh Circuit, an "exquisite dilemma" is presented when the attorney must determine whether to file a petition that would render more likely an appeal before the Secretary's ...

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