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PETRIE v. SULLIVAN

September 30, 1992

JOAN PETRIE, Plaintiff,
v.
LOUIS SULLIVAN, Secretary, Department of Health and Human Services, Defendant.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 This case comes before the court on plaintiff's amended motion for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA")

 BACKGROUND

 On October 21, 1987, plaintiff filed this action pursuant to 42 U.S.C. § 405(g) seeking Judicial review of the defendant's denial of her claims for Social Security Disability Insurance and Supplemental Security Income benefits. On September 4, 1990, this court found that the defendant's decision denying plaintiff's claims was not supported by substantial evidence. Accordingly, the case was remanded back to the defendant for the taking of additional medical expert testimony.

 On July 3, 1991, plaintiff moved for an award of attorney's fees under the EAJA. Defendant opposed the motion on the grounds that it was not timely filed and that plaintiff was not a "prevailing party" within the meaning of the EAJA. The motion was briefed by both parties.

 On August 22, 1991, the Administrative Law Judge decided on remand that plaintiff was in fact disabled and was therefore entitled to disability benefits.

 On December 5, 1991, plaintiff filed an amended motion for attorney's fees under EAJA. Defendant did not file a response to the amended motion.

 DISCUSSION

 The relevant EAJA statute, 28 U.S.C. § 2412(d)(1)(A), (B), provides as follows:

 "(A) Except as otherwise specifically provided by statute, 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), including proceedings for judicial review of agency 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 make an award unjust.

 (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . ."

 28 U.S.C. § 2412(d)(1)(A), (B) (emphasis added). Hence, plaintiff must satisfy three requirements to warrant an EAJA fee award: 1) plaintiff must be a "prevailing party"; 2) defendant's position must not have been "substantially justified"; and 3) the fee application must be timely.

 An applicant for disability benefits who wins a favorable administrative ruling after post-remand administrative proceedings is a "prevailing party" under the EAJA. Damato v. Sullivan, 945 F.2d 982, 987 n. 2 (7th Cir. 1991). Since the ALJ ruled in plaintiff's favor on remand, plaintiff was a "prevailing party". Moreover, defendant has not asserted that its position was "substantially justified" pursuant to § 2412(d)(1)(B). Plaintiff therefore easily satisfies the first two of the three EAJA fee requirements.

 The court must therefore address the timeliness of plaintiff's fee application. To be timely, the party seeking an EAJA fee award must file its application "within 30 days of the final judgment in the action . . . ." § 2412(d)(1)(B) (emphasis added). This court's September 4, 1990 order (the "Remand Order") adopted Magistrate Judge Bobrick's recommendation that the case be remanded to the defendant for additional findings. Defendant therefore asserts that September 4, 1990 was the date of "final judgment." If so, then plaintiff's fee application was untimely, since it was not filed until July 3, 1991. The court must therefore ...


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