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