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April 17, 1987


The opinion of the court was delivered by: Foreman, Chief Judge:


The matter before the Court is plaintiff Stone's Application for Attorney's Fees made pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The only issues raised by the parties are whether plaintiff was a "prevailing" party within the meaning of the Act and whether the position of the government in litigating the case was "substantially justified."

In the case at bar, plaintiff's claim was remanded by the U.S. Magistrate pursuant to Congress' passage of the Social Security Disability Benefits Reform Act of 1984 (the Act) which reestablished the "medical improvement standard" as the sole criteria by which the Secretary could terminate disability benefits.*fn1 Upon remand, the Secretary, using the "new" criteria, found that plaintiff had been wrongfully denied benefits and reinstated them. For this reason it is the government's position that the relief requested by plaintiff was achieved not by the filing of his suit, but rather by a change in the law. Specifically, the government maintains that the Act itself ordered remand of plaintiff's case to the Secretary and that the agency's subsequent reinstatement of benefits was due to their reevaluation of his claim under the "new" standard as opposed to being a result of the instant litigation. For the reasons stated below, this Court does not agree.

                               DEFINITION OF
                             "PREVAILING PARTY"

The EAJA provides in part that an award of attorney's fees shall be made to the "prevailing" party 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). Congress, however, did not define the term "prevailing party" and a thorough search of Seventh Circuit case law reveals no definition of the term as it is used in the EAJA.

The only judicial interpretation of the term in this Circuit is found with respect to 42 U.S.C. § 1988. For purposes of section 1988, plaintiffs are deemed prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Lovell v. City of Kankakee, 783 F.2d 95, 96 (7th Cir. 1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)). In cases where a settlement is reached, plaintiff's lawsuit must be causally linked to the achievement of the relief obtained. In other words, the suit must have played a provocative role in obtaining the requested relief. Harrington v. DeVito, 656 F.2d 264, 266, 267 (7th Cir. 1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). Accordingly, parties may be considered to have prevailed when they vindicate rights without formally obtaining relief. Gekas v. Atty. Registration & Disciplinary Com'n., 793 F.2d 846, 849 (7th Cir. 1986) (quoting Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)).

Other circuits have construed the term as used in the EAJA along lines not inconsistent with the Seventh Circuit's construction of it in section 1988 cases. For example, the Third Circuit held, with respect to the term as used in the EAJA, that for a party to "prevail" in disability termination cases, he must not only secure remand of the case, but also a subsequent award of benefits. Brown v. Secretary of Health and Human Services, 747 F.2d 878, 884 (3rd Cir. 1984). Similarly, in applying the term to a deportation case in which the plaintiff sought attorney's fees under the EAJA, the Tenth Circuit held that a plaintiff prevails for attorney's fees purposes if success on a significant issue of litigation achieves some of the benefit the plaintiff sought in bringing suit. Kopunec v. Nelson, 801 F.2d 1226, 1229 (10th Cir. 1986). Thus, the Court looks to the substance of the litigation to determine whether an applicant has substantially prevailed in its position, and not merely the technical disposition of the case or motion. Kopunec, supra, id. (quoting Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir. 1984). [Emphasis added.]

In a case such as the instant one, where the defendant claims its own remedial action (here its reevaluation of plaintiff's claim for benefits in light of a "new" standard promulgated by Congress) resulted in the reinstatement of benefits, rather than plaintiff's lawsuit, the test is whether plaintiff's lawsuit was a catalyst motivating defendants to provide the primary relief sought in a manner desired by litigation. Martin v. Heckler, 773 F.2d 1145, 1149 (11th Cir. 1985) (quoting Robinson v. Kimbrough, 652 F.2d 458, 465 (5th Cir. 1981)).

In a recent case from the First Circuit, the United States District Court for the District of Maine was called upon to decide an application for attorney's fees in a situation factually similar to the instant one. Deciding that the question, essentially, was whether the connection between plaintiff's suit and his recovery of benefits was sufficiently strong to establish the plaintiff as the "prevailing party," the court held that:

    In the circumstances of the present case the court
  is satisfied that the causal connection is a close
  one. Plaintiff brought the present action in order to
  challenge the Secretary's denial of benefits on the
  basis of an alleged misapplication of the "severity"
  test. Plaintiff's position in that regard was a
  correct one. Defendant did misapply the severity
  test. The fortuitous enactment of the Social Security
  Disability Benefits Reform Act merely afforded the
  Secretary an alternative basis upon which to determine
  that plaintiff was entitled to disability benefits.
  The fact of the matter is that plaintiff would have
  prevailed on his allegation that the Secretary
  misapplied the severity test. Therefore, the causal
  connection between plaintiff's suit and the
  Secretary's reversal of position, while cosmetically
  obscured, was very real indeed. Accordingly, plaintiff
  is a "prevailing party" within the meaning of the

Sherman v. Bowen, 647 F. Supp. 700 (D.C. Me. 1986).

As the Senate committee report on the EAJA stated:

  While the influence of the bureaucracy over all
  aspects of life has increased, the ability of most
  citizens to contest any unreasonable exercise of
  authority has decreased. . . . The bill rests on the
  premise that a party who chooses to litigate an issue
  against the Government is not only representing his or
  her own vested interest but also refining and
  formulating public policy. . . . An adjudication, for
  example, may show that the policy or factual
  foundation underlying an agency rule is erroneous or
  inaccurate. . . . The bill thus recognizes that the
  expense of correcting error on the part of the
  Government should not rest wholly on the party whose
  willingness to litigate . . . has helped define the
  limits of Federal authority.

H.R.Rep. No. 96-1418, 96th Cong. 2d Sess. 10, reprinted in (1980) U.S.Code Cong. & Ad.News 4953, 4984, 4988-89. [Emphasis added.] In the context of disability benefits termination cases, the ...

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