The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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 §
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.