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April 4, 1985


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


With this case we address the controversial issue of whether or not a terminated social security disability claimant, whose suit in federal court seeks, as one of two alternative remedies, a remand order to the Secretary of Health and Human Services (the "Secretary") for a redetermination of eligibility, and whose claim is in fact remanded by this court to the Secretary, is a "prevailing party" and entitled to attorneys' fees under the Equal Access to Justice Act (the "EAJA"), 28 U.S.C. § 2412(d)(1)(A). For the reasons discussed below, we find that such an individual is a "prevailing party" within the meaning of the EAJA. We further find that this conclusion holds true where, as here, we remanded plaintiff's claim for inclusion in the Secretary's national moratorium, announced in April of 1984, which suspended disability review processes pending the passage of legislation clarifying the standard for terminating benefits. The Secretary does not contend, and therefore fails to meet its burden of making a strong showing, that the agency action giving rise to this lawsuit was substantially justified. See Natural Resources Defense Council v. U.S.E.P.A., 703 F.2d 700, 712 (3d Cir. 1983). Hence, plaintiff has satisfied the requirements of the EAJA and is entitled to an award of attorneys' fees.


On August 7, 1984, plaintiff Alpha Sizemore, invoking this court's jurisdiction under 42 U.S.C. § 405(g), filed a complaint against the Secretary in which she alleged that the Secretary wrongfully terminated her eligibility for disability benefits after a hearing before an administrative law judge and a review by the Social Security Administration Appeals Council. Plaintiff alleged that the termination decision was contrary to law in that the Secretary showed neither medical improvement on plaintiff's part nor clear error in the original disability determination, and was not supported by substantial evidence. Plaintiff requested that this court reverse the Secretary's finding of ineligibility or, in the alternative, remand the matter for a rehearing. Plaintiff also moved this court to remand her case to the Secretary for inclusion in the Secretary's national moratorium, restoring benefits and suspending hearings or review for terminated recipients involved in the administrative appeal process. (The Secretary did not expressly extend this moratorium to claimants such as plaintiff with pending civil cases.)

On September 7, 1984, we announced in open court that the Secretary had failed to apply the proper legal standard, as set forth by the Seventh Circuit, in determining that plaintiff was ineligible to continue receiving benefits, and remanded the case for rehearing. We also ordered the Secretary to include plaintiff's claim within the moratorium. As a result, the Secretary restored plaintiffs benefits and delayed holding a rehearing pending the passage of legislation prescribing the standard for terminating eligibility. On October 9, 1984, the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794-1813 (codified in scattered sections of 42 U.S.C.), became law, and set forth a "medical improvement" standard similar to that which plaintiff had alleged in this court that the Secretary should have applied to her claim. The Secretary has not yet held plaintiffs rehearing.

Plaintiff has filed an application for attorneys' fees pursuant to the EAJA. The Secretary opposes the application on the grounds that plaintiff is not yet at least a "prevailing party," as required for recovery under the EAJA, because plaintiff has not been deemed by this court or the Secretary to be eligible for benefits.


The EAJA provides, in relevant part, as follows:

  [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). Although the statute expired by its own terms on October 1, 1984, it remains applicable to cases such as this that were commenced before the date of repeal. Pub.L. No. 96-481 § 204(c); see Berman v. Schweiker, 713 F.2d 1290, 1294 n. 13 (7th Cir. 1983). Furthermore, the statute is applicable to actions such as this one against an agency official acting in her official capacity as well as to those against the United States itself. See 28 U.S.C. § 2412(d)(2)(C).

The government does not claim that its position was substantially justified or that this case falls within the "special circumstances" provision of the EAJA. Therefore, the question that determines plaintiff's entitlement to fees under the EAJA is whether or not plaintiff is a "prevailing party."

A claimant is clearly a prevailing party when a district court finds that the claimant is entitled to benefits, reverses the Secretary's determination of non-eligibility and remands to the Secretary simply for calculation and payment of benefits. See McGill v. Secretary of HHS, 712 F.2d 28, 30 (2d Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984); Berman v. Schweiker, 531 F. Supp. 1149, 1153 (N.D.Ill. 1982), aff'd, 713 F.2d 1290 (7th Cir. 1983); Ruiz-Rivera v. Heckler, No. 83C2987, slip op. at 1 (N.D.Ill. Mar. 14, 1985). The question on which courts divide is whether or not a plaintiff prevails when the Secretary is reversed and the claim is remanded, either for a rehearing because of error in the original hearing process or for the taking of more evidence because of insufficient factfinding, without a judicial finding of eligibility for benefits. Compare, e.g., Brown v. Secretary of HHS, 747 F.2d 878, 885 (3d Cir. 1984) (remand after denial of original application); McGill v. Secretary of HHS, 712 F.2d at 31-32 (same); with Haney v. Heckler, No. 82 C 7714, slip op. at 5-11 (N.D.Ill. Sept. 10, 1984) (remand after termination); Gross v. Schweiker, 563 F. Supp. 260, 262 (N.D.Ind. 1983) (remand after denial of original application); see also cases cited in Brown, 747 F.2d at 881.

A number of considerations lead us to favor plaintiff's contention that she was a prevailing party in this civil action. The EAJA does not define the term "prevailing party," but the plain meaning of the term seemingly extends to a plaintiff who obtains one of the two alternative forms of relief sought — a rehearing according to specific guidelines. The standard definition of "prevailing party" is "[t]he party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. . . ." Black's Law Dictionary 1069 (5th ed. 1979). In this case, plaintiff succeeded on the only claim in her complaint, that the Secretary's decision was contrary to law or not supported by substantial evidence. As she requested as one alternative for relief, we reversed the decision of the Secretary and ordered that the legal standard advocated by plaintiff be applied to plaintiff's claim on rehearing. Judgment was entered and we retained no jurisdiction over the matter on remand. Thus, under ordinary standards, plaintiff prevailed in her lawsuit.

Under this analysis, this case is comparable to Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979), in which the Court of Appeals for the Third Circuit found that a plaintiff who had been terminated from employment was a prevailing party under the Civil Rights Attorneys' Fees Awards Act when the court ordered a rehearing by the Civil Service Commission in accordance with the requirements of due process. In each case, the plaintiff, while not fulfilling her ultimate goal of ...

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