The opinion of the court was delivered by: Bua, District Judge.
The EAJA provides that "a court shall award to a prevailing
party other than the United States" reasonable attorneys' fees
and expenses, in addition to costs, "incurred by that party in
any civil 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 made an
award unjust." 28 U.S.C. § 2412(d)(1)(A) (1982). Thus, to
support a motion for attorneys' fees, two important
prerequisites must be set forth: (1) the court must determine
that the claimant was a "prevailing party;" and, (2) that after
the claimant has prevailed, the court must further find that
the position of the government was not "substantially
justified" and that no "special circumstances" make an award of
1. The Prevailing Party Requirement
Plaintiff argues that the purpose of the EAJA in awarding
attorneys' fees is to correct inequities in civil actions
between the United States and private litigants so that the
parties would be on a more even footing. Plaintiff concludes
that the remand in her case based on the ALJ's failure to
develop a complete record is a proper situation for awarding
attorneys' fees under the EAJA. Defendant argues that
attorneys' fees under the EAJA should be awarded only if the
claimant is actually awarded benefits. Defendant concludes that
attorneys' fees for the remand in this case are inappropriate
because the plaintiff did not prevail on the merits and has not
yet been awarded benefits.
The plaintiff relies on Gross v. Schweiker, 563 F. Supp. 260
(N.D.Ind. 1983), which allowed an award of attorneys' fees
under the EAJA after the district court reversed and remanded
the case to the Secretary for a new hearing and "fresh findings
and conclusions." As practical as the Gross reasoning is, we
decline to follow it because it is too broad an interpretation
of the EAJA. The Gross court rejects what might be called an
"on-the-merits" test. Under this test, claimants are only
awarded attorneys' fees when they have received benefits under
the Social Security Act and thereby prevailed on the merits of
the claim. It is clear that Gross embraces the minority view.
Contrary to the Gross case, several Circuit Courts of Appeals
have embraced the majority view in holding that the plaintiff
is not a prevailing party simply because she obtained a remand.
The leading case is McGill v. Secretary of Health and Human
Services, 712 F.2d 28 (2d Cir. 1983), cert. denied, ___ U.S.
___, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). In McGill, the
Second Circuit held that a claimant whose case is remanded to
the Secretary for the taking of additional evidence is not a
prevailing party under EAJA. Id. at 32. The court reasoned
that a claimant will not become a prevailing party until a
claimant is awarded the benefits sought. Id. Similarly, in
Cook v. Heckler (Secretary of Health and Human Services),
751 F.2d 240 (8th Cir. 1984), the court found that it is not enough
for an award of attorneys' fees under the EAJA for a Social
Security claimant to have won a remand to the Secretary for
further evidentiary proceedings. It is the receipt of these
benefits that renders a typical Social Security claimant a
prevailing party. Id. at 241. "When a court vacates an
administrative decision and remands the matter for
reconsideration, the successful party generally should not
recover attorneys' fees at that particular time since the
claimant's rights and liabilities have not yet been
determined." Brown v. Secretary of Health
and Human Services, 747 F.2d 878 at 883 (3rd Cir. 1984).
In the instant case, the ALJ determined that the plaintiff's
condition did not meet the Listing of Impairments. This Court
noted that "the ALJ's observations may indeed be valid" but
determined that further evidentiary proceedings are necessary.
Steffens v. Heckler, No. 83 C 5823, slip op. at 2 (N.D.Ill.
June 25, 1984). This Court did not seek to reverse the
Secretary, but only to remand the case for further hearings.
The plaintiff still has no certainty of ultimately receiving
benefits. Though the ALJ failed to fulfill his duty to fully
develop a complete administrative record, there is no reason to
find the plaintiff a prevailing party under the "on-the-merits"
The Court adopts the court's reasoning in McGill and its
narrow interpretation of the EAJA. The Court holds that no
claimant who attains a remand is a prevaling party under the
majority view, the "on-the-merits" test. Should the plaintiff
prevail on remand, then her fee request was simply premature.
If the plaintiff should not prevail, she will not receive
attorneys' fees. Since the Court finds that the plaintiff may
be granted or denied benefits on remand, it is not inconsistent
with its interpretation of the EAJA to hold that a claimant who
receives a remand from the district court is not a prevailing
We join the Second, Third, and Eighth Circuits in holding that
the claimant here may not recover attorneys' fees and costs
under the EAJA since she is not a prevailing party. Since the
claimant is not a prevailing party, the issue of whether the
government was substantially justified need not be addressed.
Accordingly, the plaintiff's motion for an award of attorneys'
fees is denied.
For the reasons stated above, the plaintiff's motion for
attorneys' fees is ...