After a final decision of the Secretary of Health and Human
Services denied respondent's application for Social Security
disability benefits, she brought an action for judicial review in
the District Court under 42 U.S.C. § 405(g). The court affirmed the
denial, but the Court of Appeals reversed on the ground that the
Secretary had not followed her own regulations in making the
disability determination, vacated the Secretary's decision, and
instructed the District Court to remand the case to the Secretary
for reconsideration. On remand, respondent was represented by
counsel in proceedings before an Administrative Law Judge (ALJ).
After the Social Security Appeals Council adopted the ALJ's
recommended decision that respondent was disabled and instructed
the Secretary to pay her benefits, the District Court granted the
Secretary's motion to dismiss the judicial review action on the
ground that respondent had obtained all the relief prayed for. The
court retained jurisdiction over the action for the limited purpose
of considering any petition for attorney's fees. Respondent then
filed such a petition under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412(d) (1982 ed., Supp. V), but the District Court
denied the petition on the ground that the Secretary's position in
the initial denial of benefits was "substantially justified" within
the meaning of the EAJA. The Court of Appeals disagreed for the
reasons stated in its previous decision in the case and reversed,
concluding that an award of fees was proper under the EAJA. The
court held that the award could include attorney's fees for work
done at the administrative level after the cause was remanded to
the Secretary by the District Court, rejecting the Secretary's
argument that provisions of 5 U.S.C. § 504(a) (1982 ed., Supp. V)
limited a court's power to award such fees for administrative
proceedings to those situations "in which the position of the
United States is represented by counsel." While recognizing that
the Secretary was not so represented in the remand proceedings, the
court found that the proceedings on remand were "adversarial"
because the Secretary had taken an adversarial position in the
judicial review proceedings prior to the remand.
Held: It is within a federal court's power under the
EAJA to award a Social Security claimant attorney's fees for
representation provided during
Page 490 U. S. 878
administrative proceedings held pursuant to a district court
order remanding the action to the Secretary. Pp.
490 U. S.
883-893.
(a) An award of fees is proper in cases such as the present
under § 2412(d)(1)(A), which provides for such an award to a
"prevailing party . . . in any civil action . . . for judicial
review of agency action . . . in any court having jurisdiction of
that action, unless the court finds that the [Government's]
position . . . was substantially justified."
Where, as here, a court's § 405(g) remand to the Secretary for
further proceedings does not necessarily dictate the receipt of
benefits, the claimant will not normally attain "prevailing party"
status until after the result of the administrative proceedings is
known.
Cf. Hanrahan v. Hampton, 446 U.
S. 754;
Texas State Teachers Assn. v. Garland
Independent School Dist., 489 U. S. 782.
Furthermore, the EAJA requires that a fee application be filed
"within thirty days of final judgment," § 2412(d)(1)(B), but often,
as in this case, there will be no "final judgment" in a claimant's
"civil action . . . for . . . review" until the successful
completion of the remand proceedings before the Secretary.
Moreover, the remanding court continues to retain "jurisdiction of
that action" within the meaning of § 2412(d)(1)(A), and may
exercise that jurisdiction to determine if its legal instructions
on remand have been followed. Where administrative proceedings are
intimately tied to the resolution of the judicial action and are
necessary to the attainment of the results Congress sought to
promote by providing for fees, they should be considered part of
the action for which fees may be awarded.
Pennsylvania v.
Delaware Valley Citizens' Council, 478 U.
S. 546;
New York Gas Light Club, Inc. v. Carey,
447 U. S. 54. Thus,
the EAJA, read in light of its purpose of diminishing the deterrent
effect of the cost of seeking review of agency action, permits a
court, in its discretion, to award fees for services performed on
remand before the Secretary if the court finds that the Secretary's
position on judicial review was not "substantially justified." Pp.
490 U. S.
883-890.
(b) The Secretary's interrelated challenges to this
interpretation -- (1) that the plain meaning of "civil action"
excludes any proceedings outside a court of law, and (2) that a
court may never award fees for time spent in nonadversarial
proceedings before the Secretary because the EAJA, § 2412(d)(3),
already empowers a court to award fees for representation before an
agency to a prevailing party in a judicial action "to the same
extent authorized in [5 U.S.C. § 504]" -- are rejected. Even though
Social Security benefit proceedings are not "adversarial" under §
504, they are so intimately connected with the judicial proceedings
as to be considered part of the "civil action." Section 2412(d)(3)
does not necessarily speak to, let alone preclude, such a reading,
since, on its face, the provision says nothing about the power of a
court to award fees for representation
Page 490 U. S. 879
in a
nonadversarial adjudication wholly ancillary to a
"civil action." Pp.
490 U. S.
890-892.
839 F.2d 1453, affirmed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA
and KENNEDY, JJ., joined,
post, p.
490 U. S.
893.
JUSTICE O'CONNOR delivered the opinion of the Court.
The issue before us in this case is whether a Social Security
claimant is entitled to an award of attorney's fees under the Equal
Access to Justice Act for representation provided during
administrative proceedings held pursuant to a district court order
remanding the action to the Secretary of Health and Human
Services.
I
Respondent Elmer Hudson filed an application for the
establishment of a period of disability and for disability benefits
under the Social Security Act, 49 Stat. 620,
as amended,
42 U.S.C. § 401
et seq. (1982 ed. and Supp. V) on
September 9, 1981. On the same day, she filed an application for
supplemental security income under Title XVI of the Act.
Respondent, now 50, submitted medical evidence indicating obesity,
limitations in movement, and lower back pain. Her application for
benefits was administratively denied, and that position was upheld
on reconsideration by the Social Security Administration.
Respondent requested and received a hearing before an
Administrative Law Judge (ALJ), where
Page 490 U. S. 880
she was represented by a Legal Services Corporation paralegal.
At the hearing, respondent testified that she suffered from back
pain, depression, and nervousness. Respondent was in a state of
anxiety and cried throughout the hearing. The ALJ ordered a
posthearing psychiatric examination by Dr. Anderson, a
psychiatrist, and respondent's representative chose to have her
undergo an additional evaluation by Dr. Myers, a clinical
psychologist. Dr. Anderson's report indicated that respondent
suffered from mild to moderate dysthymic disorder and a histrionic
personality disorder. He concluded that respondent's psychological
condition would not interfere with her ability to work in the
domestic services area, where most of her past work experience lay.
Dr. Myers found that respondent was moderately to severely
depressed, suffered from insomnia, fatigue, psychomotor
retardation, tearfulness, and anxiety. He concluded that her
psychological problems, coupled with her mild physical disabilities
and back pain, rendered her unemployable absent exhaustive
rehabilitative efforts.
Based on these two reports, the ALJ rendered her decision
finding that respondent was not disabled because she was capable of
performing work similar to that she had done in the past. The ALJ's
decision was approved by the Social Security Appeals Council, thus
becoming the final decision of the Secretary concerning
respondent's applications. Respondent then brought an action in the
District Court for the Northern District of Alabama under 42 U.S.C.
§ 405(g), seeking judicial review of the Secretary's decision
denying benefits. The District Court found that the Secretary's
decision was supported by substantial evidence, and affirmed the
denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of
Appeals for the Eleventh Circuit reversed. It vacated the
Secretary's decision and instructed the District Court to remand
the case to the Secretary for reconsideration.
Hudson v.
Heckler, 755 F.2d 781 (1985). The Court of Appeals agreed with
respondent that "the Secretary did
Page 490 U. S. 881
not follow her own regulations" in making the disability
determination in respondent's case.
Id. at 785. The court
found that those regulations required the Secretary to consider the
cumulative effect of impairments even where no individual ailment
considered in isolation would be disabling.
Ibid. In
respondent's case, the ALJ had never considered the combined effect
of respondent's physical and psychological afflictions. Nor had the
ALJ given any reasons for her rejection of Dr. Myers' evaluation of
the combined effects of respondent's physical and psychological
conditions.
Id. at 785-786.
Following the District Court's remand order, the Social Security
Appeals Council vacated its earlier denial of respondent's request
for review and returned the case to an ALJ for further proceedings.
App. to Pet. for Cert. 30a. The Appeals Council instructed the ALJ
to provide respondent with an opportunity to testify at a
supplemental hearing and to adduce additional evidence.
Id. at 31a. The Appeals Council also indicated that the
ALJ might wish to obtain the services of a medical adviser to
evaluate respondent's psychiatric impairment during the period at
issue.
Ibid. Finally, the Appeals Council instructed the
ALJ to apply the revised regulations for determining disability due
to mental disorders, which had been published by the Secretary in
1985 pursuant to statutory directive.
Ibid. On remand, the
ALJ found that respondent had been disabled as of May 15, 1981, as
she had originally maintained in her initial applications for
benefits. Respondent was represented before the ALJ in the remand
proceedings by the same counsel who had represented her before the
District Court and the Court of Appeals.
On October 22, 1986, the Appeals Council adopted the ALJ's
recommended decision and instructed the Social Security
Administration to pay respondent disability and supplemental income
benefits.
Id. at 21a-23a. On December 11, 1986, the
District Court, pursuant to the Secretary's motion,
Page 490 U. S. 882
dismissed respondent's action for judicial review, finding that,
after the remand order, respondent had obtained all the relief
prayed for in her complaint. The District Court retained
jurisdiction over the action for the limited purpose of considering
any petition for the award of attorney's fees. Respondent then
filed the instant petition for an award of attorney's fees under
the Equal Access to Justice Act (EAJA), Pub.L. 96-481, 94 Stat.
2328,
as amended, 28 U.S.C. § 2412(d) (1982 ed., Supp. V).
The District Court denied respondent's fee application
in
toto, finding that the position taken by the Secretary in the
initial denial of benefits to respondent was "substantially
justified." App. to Pet. for Cert. 17a-20a. The Court of Appeals
again reversed.
Hudson v. Secretary of Health and Human
Services, 839 F.2d 1453 (CA11 1988). The Court of Appeals
noted that, in its earlier opinion, it had found that the Secretary
had violated her own regulations by failing to consider the
cumulative effect of respondent's ailments, and that the ALJ had
failed to give her reasons for rejection of Dr. Myers' testimony
concerning the cumulative effects of respondent's ailments.
Id. at 1457-1458. The Secretary's defense of the denial of
benefits to respondent "on those two grounds was not substantially
justified."
Id. at 1458. Having concluded that an award of
attorney's fees was proper under the EAJA, the court went on to
consider whether the award could include attorney's fees for work
done at the administrative level after the cause was remanded to
the Secretary by the District Court. The Court of Appeals rejected
the Secretary's argument that 5 U.S.C. §§ 504(a)(1) and
504(b)(1)(C) (1982 ed., Supp. V) limited a court's power to award
attorney's fees for administrative proceedings to those situations
"in which the position of the United States is represented by
counsel or otherwise. . . ." While recognizing that the Secretary
was not represented by counsel in the remand proceedings at issue
here, the Court of Appeals found that "the critical determination
is whether the Secretary has staked out a position." 839 F.2d at
1460.
Page 490 U. S. 883
Since the Secretary had taken an adversarial position in the
proceedings for judicial review prior to the remand, the Court of
Appeals found that the proceedings were no less "adversarial" on
remand before the agency, and therefore a fee award encompassing
work performed before the agency on remand was proper.
Ibid.
Because the Court of Appeals' decision granting attorney's fees
for representation in administrative proceedings on remand from
judicial review of a Social Security benefits determination
conflicts with the decisions of other Courts of Appeals,
see,
e.g., Cornella v. Schweiker, 728 F.2d 978, 988-989 (CA8 1984),
we granted the Secretary's petition for certiorari.
Sub nom.
Bowen v. Hudson, 488 U.S. 980 (1988).
II
In 1980, Congress passed the EAJA in response to its concern
that persons
"may be deterred from seeking review of, or defending against,
unreasonable governmental action because of the expense involved in
securing the vindication of their rights."
94 Stat. 2325. As the Senate Report put it:
"For many citizens, the costs of securing vindication of their
rights and the inability to recover attorney fees preclude resort
to the adjudicatory process. . . . When the cost of contesting a
Government order, for example, exceeds the amount at stake, a party
has no realistic choice and no effective remedy. In these cases, it
is more practical to endure an injustice than to contest it."
S.Rep. No. 96-253, p. 5 (1979).
The EAJA was designed to rectify this situation by providing for
an award of a reasonable attorney's fee to a "prevailing party" in
a "civil action" or "adversary adjudication" unless the position
taken by the United States in the proceeding at issue "was
substantially justified" or "special circumstances make an award
unjust." That portion of the Act applicable
Page 490 U. S. 884
to "civil actions" provides, as amended, in relevant part
that
"[e]xcept 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
. . . 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."
28 U.S.C. § 2412(d)(1)(A) (1982 ed., Supp. V).
Application of this provision to respondent's situation here
requires brief consideration of the structure of administrative
proceedings and judicial review under the Social Security Act. Once
a claim has been processed administratively, judicial review of the
Secretary's decision is available pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), which provides in
pertinent part:
"Any individual, after any final decision of the Secretary made
after a hearing to which he was a party, . . . may obtain a review
of such decision by a civil action. . . . The court shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing. . .
. The court may, on motion of the Secretary for good cause shown
before he files his answer, remand the case to the Secretary for
further action by the Secretary, and it may at any time order
additional evidence to be taken before the Secretary, but only upon
a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding; and the Secretary shall,
after the case is remanded, and after hearing such additional
Page 490 U. S. 885
evidence if so ordered, modify or affirm his findings of fact or
his decision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and a
transcript of the additional record and testimony upon which his
action in modifying or affirming was based."
As provisions for judicial review of agency action go, § 405(g)
is somewhat unusual. The detailed provisions for the transfer of
proceedings from the courts to the Secretary and for the filing of
the Secretary's subsequent findings with the court suggest a degree
of direct interaction between a federal court and an administrative
agency alien to traditional review of agency action under the
Administrative Procedure Act. As one source puts it:
"The remand power places the courts, not in their accustomed
role as external overseers of the administrative process, making
sure that it stays within legal bounds, but virtually as
coparticipants in the process, exercising ground-level discretion
of the same order as that exercised by ALJs and the Appeals Council
when they act upon a request to reopen a decision on the basis of
new and material evidence."
J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, &
M. Carrow, Social Security Hearings and Appeals 133 (1978).
Where a court finds that the Secretary has committed a legal or
factual error in evaluating a particular claim, the district
court's remand order will often include detailed instructions
concerning the scope of the remand, the evidence to be adduced, and
the legal or factual issues to be addressed.
See, e.g., Cooper
v. Bowen, 815 F.2d 557, 561 (CA9 1987). Often, complex legal
issues are involved, including classification of the claimant's
alleged disability or his or her prior work experience within the
Secretary's guidelines or "grids" used for determining claimant
disability.
See, e.g., Cole v. Secretary of Health and Human
Services, 820 F.2d 768,
Page 490 U. S. 886
772-773 (CA6 1987). Deviation from the court's remand order in
the subsequent administrative proceedings is itself legal error,
subject to reversal on further judicial review.
See, e.g.,
Hooper v. Heckler, 752 F.2d 83, 88 (CA4 1985);
Mefford v.
Gardner, 383 F.2d 748, 758-759 (CA6 1967). In many remand
situations, the court will retain jurisdiction over the action
pending the Secretary's decision and its filing with the court.
See Ahghazali v. Secretary of Health and Human Services,
867 F.2d 921, 927 (CA6 1989) (remanding action to District Court
with instructions to retain jurisdiction during proceedings on
remand before the agency);
Taylor v. Heckler, 778 F.2d
674, 677, n. 2 (CA11 1985) ("[T]he district court retains
jurisdiction of the case until the proceedings on remand have been
concluded");
accord, Brown v. Secretary of Health and Human
Services, 747 F.2d 878, 883-885 (CA3 1984). The court retains
the power in such situations to assure that its prior mandate is
effectuated.
See Ford Motor Co. v. NLRB, 305 U.
S. 364,
305 U. S. 373
(1939).
Two points important to the application of the EAJA emerge from
the interaction of the mechanisms for judicial review of Social
Security benefits determinations and the EAJA. First, in a case
such as this one, where a court's remand to the agency for further
administrative proceedings does not necessarily dictate the receipt
of benefits, the claimant will not normally attain "prevailing
party" status within the meaning of § 2412(d)(1)(A) until after the
result of the administrative proceedings is known. The situation is
for all intents and purposes identical to that we addressed in
Hanrahan v. Hampton, 446 U. S. 754
(1980). There we held that the reversal of a directed verdict for
defendants on appeal did not render the plaintiffs in that action
"prevailing parties" such that an interim award of attorney's fees
would be justified under 42 U.S.C. § 1988. We found that such
"procedural or evidentiary rulings" were not themselves "matters on
which a party could
prevail' for purposes of shifting his
counsel fees to the opposing party under § 1988."
Page 490 U. S.
887
Id. at 446 U. S. 759.
More recently in Texas State Teachers Assn. v. Garland
Independent School Dist., 489 U. S. 782
(1989), we indicated that, in order to be considered a prevailing
party, a plaintiff must achieve some of the benefit sought in
bringing the action. Id. at 489 U. S.
791-793. We think it clear that, under these principles,
a Social Security claimant would not, as a general matter, be a
prevailing party within the meaning of the EAJA merely because a
court had remanded the action to the agency for further
proceedings. See Hewitt v. Helms, 482 U.
S. 755, 482 U. S. 760
(1987). Indeed, the vast majority of the Courts of Appeals have
come to this conclusion. See, e.g., Paulson v. Bowen, 836
F.2d 1249, 1252 (CA9 1988); Swedberg v. Bowen, 804 F.2d
432, 434 (CA8 1986); Brown v. Secretary of Health and Human
Services, 747 F.2d at 880-881.
Second, the EAJA provides that an application for fees must be
filed with the court "within thirty days of final judgment in the
action." 28 U.S.C. § 2412(d)(1)(B) (1982 ed., Supp. V). As in this
case, there will often be no final judgment in a claimant's civil
action for judicial review until the administrative proceedings on
remand are complete.
See Guthrie v. Schweiker, 718 F.2d
104, 106 (CA4 1983) ("[T]he procedure set forth in 42 U.S.C. §
405(g) contemplates additional action both by the Secretary and a
district court before a civil action is concluded following a
remand"). The Secretary concedes that a remand order from a
district court to the agency is not a final determination of the
civil action, and that the district court "retains jurisdiction to
review any determination rendered on remand." Brief for Petitioner
16, 16-17.
Thus, for purposes of the EAJA, the Social Security claimant's
status as a prevailing party and the final judgment in her "civil
action . . . for review of agency action" are often completely
dependent on the successful completion of the remand proceedings
before the Secretary. Moreover, the remanding court continues to
retain jurisdiction over the action within the meaning of the EAJA,
and may exercise that jurisdiction
Page 490 U. S. 888
to determine if its legal instructions on remand have been
followed by the Secretary. Our past decisions interpreting other
fee-shifting provisions make clear that, where administrative
proceedings are intimately tied to the resolution of the judicial
action and necessary to the attainment of the results Congress
sought to promote by providing for fees, they should be considered
part and parcel of the action for which fees may be awarded.
In
Pennsylvania v. Delaware Valley Citizens' Council,
478 U. S. 546
(1986), we considered whether the costs of representation before
federal and state administrative agencies in defense of the
provisions of a consent decree entered under the Clean Air Act were
compensable under the fee-shifting provision of that statute.
Section 304(d) of the Clean Air Act provides for the award of a
reasonable attorney fee in conjunction with "any final order in any
action brought pursuant to" certain provisions of the Act. 42
U.S.C. § 7604(d). In
Delaware Valley, we rejected the
contention that the word "action" in the fee-shifting provision
should be read narrowly to exclude all proceedings which could be
plausibly characterized as "nonjudicial." We indicated that
"[a]lthough it is true that the proceedings [at issue] were not
'judicial' in the sense that they did not occur in a courtroom or
involve 'traditional' legal work such as examination of witnesses
or selection of jurors for trial, the work done by counsel in these
two phases was as necessary to the attainment of adequate relief
for their client as was all of their earlier work in the courtroom
which secured Delaware Valley's initial success in obtaining the
consent decree."
478 U.S. at
478 U. S.
558.
Similarly, in
New York Gas Light Club, Inc. v. Carey,
447 U. S. 54
(1980), we held that, under the fee-shifting provision of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), a federal
court could award attorney's fees for services performed in state
administrative and judicial
Page 490 U. S. 889
enforcement proceedings. We noted that the words of the statute,
authorizing "the court" to award attorney's fees "[i]n any action
or proceeding under this title" could be read to include only
federal administrative or judicial proceedings. 447 U.S. at
447 U. S. 60-61.
Looking to the entire structure of Title VII, we observed that
Congress had mandated initial resort to state and local remedies,
and that
"Congress viewed proceedings before the Equal Employment
Opportunity Commission and in federal court as supplements to
available state remedies for employment discrimination."
Id. at
447 U. S. 65.
Given this interlocking system of judicial and administrative
avenues to relief, we concluded that the exclusion of state and
local administrative proceedings from the fee provisions would
clearly clash with the congressional design behind the statutory
scheme whose enforcement the fee-shifting provisions was designed
to promote.
Ibid. See also Webb v. Dyer County Board
of Education, 471 U. S. 234,
471 U. S. 243
(1985) (work performed in administrative proceedings that is "both
useful and of a type ordinarily necessary to advance civil rights
litigation" may be compensable under 42 U.S.C. § 1988);
North
Carolina Dept. of Transportation v. Crest Street Community Council,
Inc., 479 U. S. 6,
479 U. S. 15
(1986).
We think the principles we found persuasive in
Delaware
Valley and
Carey are controlling here. As in
Delaware Valley, the administrative proceedings on remand
in this case were "crucial to the vindication of [respondent's]
rights."
Delaware Valley, supra, at
478 U. S. 561.
No fee award at all would have been available to respondent absent
successful conclusion of the remand proceedings, and the services
of an attorney may be necessary both to ensure compliance with the
district court's order in the administrative proceedings themselves
and to prepare for any further proceedings before the district
court to verify such compliance. In addition, as we did in
Carey, we must endeavor to interpret the fee statute in
light of the statutory provisions it was designed to effectuate.
Given the "mandatory" nature of the administrative proceedings
Page 490 U. S. 890
at issue here and their close relation in law and fact to the
issues before the District Court on judicial review, we find it
difficult to ascribe to Congress an intent to throw the Social
Security claimant a lifeline that it knew was a foot short. Indeed,
the incentive which such a system would create for attorneys to
abandon claimants after judicial remand runs directly counter to
long established ethical canons of the legal profession.
See American Bar Association, Model Rules of Professional
Conduct, Rule 1.16, pp. 53-55 (1984). Given the anomalous nature of
this result, and its frustration of the very purposes behind the
EAJA itself, Congress cannot lightly be assumed to have intended
it.
See Christiansburg Garment Co. v. EEOC, 434 U.
S. 412,
434 U. S.
418-419 (1978). Since the judicial review provisions of
the Social Security Act contemplate an ongoing civil action of
which the remand proceedings are but a part, and § 2412(d)(1)(A) of
the EAJA allows "any court having jurisdiction of that action" to
award fees, we think the statute, read in light of its purpose "to
diminish the deterrent effect of seeking review of, or defending
against, governmental action," 94 Stat. 2325, permits a court to
award fees for services performed on remand before the Social
Security Administration. Where a court finds that the Secretary's
position on judicial review was not substantially justified within
the meaning of the EAJA,
see Pierce v. Underwood,
487 U. S. 552,
487 U. S.
563-568 (1988), it is within the court's discretion to
conclude that representation on remand was necessary to the
effectuation of its mandate and to the ultimate vindication of the
claimant's rights, and that an award of fees for work performed in
the administrative proceedings is therefore proper.
See
Delaware Valley, supra, at
478 U. S. 561;
Webb, supra, at
471 U. S.
243.
The Secretary mounts two interrelated challenges to this
interpretation of § 2412(d)(1)(A). While the Secretary's
contentions are not without some force, neither rises to the level
necessary to oust what we think is the most reasonable
interpretation of the statute in light of its manifest purpose.
Page 490 U. S. 891
First, the Secretary argues that plain meaning of the term
"civil action" in § 2412(d)(1)(A) excludes any proceedings outside
of a court of law. Brief for Petitioner 12-13; Reply Brief for
Petitioner 8-9. Of course, if the plain language of the EAJA
evinced a congressional intent to preclude the interpretation we
reach here, that would be the end of the matter. In support of this
proposition, the Secretary points out that the "
[t]erm [action]
in its usual legal sense means a suit brought in a court; a formal
complaint within the jurisdiction of a court of law.'" Brief for
Petitioner 13, n. 7, quoting Black's Law Dictionary 26 (5th
ed.1979). Second, the Secretary notes that Congress did authorize
EAJA fee awards under 5 U.S.C. § 504(a)(1) (1982 ed., Supp. V)
where an agency "conducts an adversary adjudication," and that an
adversary adjudication is defined in § 504(b)(1)(C) as "an
adjudication . . . in which the position of the United States is
represented by counsel or otherwise." Under 28 U.S.C. § 2412(d)(3)
(1982 ed., Supp. V), a court is empowered to award fees for
representation before an agency to a party who prevails in an
action for judicial review to "the same extent authorized in [5
U.S.C. § 504(a)]." Thus, the Secretary concludes that, since
benefits proceedings before the Secretary and his designates are
nonadversarial, and a court is explicitly empowered to award fees
for agency proceedings where such proceedings satisfy the
requirements of § 504(a)(1), the principle of expressio unius
est exclusio alterius applies, and a court may never award
fees for time spent in nonadversarial administrative proceedings.
See Brief for Petitioner 12-18; Reply Brief for Petitioner
7-12.
We agree with the Secretary that, for purposes of the EAJA,
Social Security benefit proceedings are not "adversarial" within
the meaning of § 504(b)(1)(C) either initially or on remand from a
court.
See Richardson v. Perales, 402 U.
S. 389,
402 U. S. 403
(1971). The plain language of the statute requires that the United
States be represented by "counsel or otherwise," and neither is
true in this context. Nonetheless,
Page 490 U. S. 892
we disagree with the conclusion the Secretary would draw from
this fact. First, as
Delaware Valley, Webb, and
Carey indicate, administrative proceedings may be so
intimately connected with judicial proceedings as to be considered
part of the "civil action" for purposes of a fee award. This is
particularly so in the Social Security context where "a suit [has
been] brought in a court," and where "a formal complaint within the
jurisdiction of a court of law" remains pending and depends for its
resolution upon the outcome of the administrative proceedings.
Second, we disagree with the Secretary's submission that a negative
implication can be drawn from the power granted a court to award
fees based on representation in a prior adversary adjudication
before an agency. Section 2412(d)(3) provides that,
"[i]n awarding fees and other expenses under this subsection to
a prevailing party in any action for judicial review of an
adversary adjudication,"
the court may award fees to the same extent that they would have
been available before the agency itself under § 504(a)(1). On its
face, the provision says nothing about the power of a court to
award reasonable fees for representation in a
nonadversarial adjudication which is wholly ancillary to a
civil action for judicial review. That Congress carved the world of
EAJA proceedings into "adversary adjudications" and "civil actions"
does not necessarily speak to, let alone preclude, a reading of the
term "civil action" which includes administrative proceedings
necessary to the completion of a civil action.
We conclude that, where a court orders a remand to the Secretary
in a benefits litigation and retains continuing jurisdiction over
the case pending a decision from the Secretary which will determine
the claimant's entitlement to benefits, the proceedings on remand
are an integral part of the "civil action" for judicial review, and
thus attorney's fees for representation on remand are available
subject to the other limitations in the EAJA. We thus affirm the
judgment of the
Page 490 U. S. 893
Court of Appeals on this issue, and remand the case to that
court for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and
JUSTICE KENNEDY join, dissenting.
In 1985, Congress reenacted the Equal Access to Justice Act
(EAJA), 99 Stat. 183, authorizing awards of attorney's fees to
parties that prevail in litigation against the United States unless
the position taken by the United States is substantially justified
or the award unjust. Fees can be awarded only when "incurred . . .
in any civil action . . . brought . . . in any court having
jurisdiction of that action," 28 U.S.C. § 2412(d)(1)(A) (1982 ed.,
Supp. V), or when incurred in connection with an "adversary
adjudication" conducted by an agency, 5 U.S.C. § 504(a)(1) (1982
ed., Supp. V). Congress refused to extend the EAJA to fees incurred
in proceedings before the Social Security Administration, which are
nonadversarial, leaving supporters of such an extension "a fight
which will have to be fought another day." 131 Cong.Rec. 20350
(1985) (remarks of Sen. Heflin). The majority today awards those
supporters a partial victory in that fight without either side
having stepped into the legislative ring. Because this judicial TKO
ignores the plain language of the EAJA as well as its legislative
history, I dissent.
The majority correctly rejects the reasoning of the Court of
Appeals that, once the petitioner took a position in District
Court, by arguing that respondent was not entitled to benefits, the
case became an "adversary adjudication" and respondent was entitled
under § 504(a)(1) to attorney's fees incurred on remand. As the
majority concludes, this interpretation of § 504(a)(1) is flatly
contrary to 5 U.S.C. § 504(b)(1)(C) (1982 ed., Supp. V), which
defines "adversary adjudication" as one in which the "position of
the United States is represented by counsel or otherwise."
Proceedings before the Social Security Administration, even on
remand
Page 490 U. S. 894
from a district court, do not satisfy this requirement, as the
majority recognizes.
Ante at
490 U. S.
891.
Instead, the majority looks to § 2412(d)(1)(A), the provision of
the EAJA dealing with fees incurred in "civil actions," as the
basis for authorizing the award of fees at issue here. The majority
reasons that,
"[s]ince the judicial review provisions of the Social Security
Act contemplate an ongoing civil action of which the remand
proceedings are but a part, and § 2412(d)(1)(A) of the EAJA allows
'any court having jurisdiction of that action' to award fees, . . .
the statute . . . permits a court to award fees for services
performed on remand before the Social Security Administration."
Ante at
490 U. S. 890.
In so construing § 2412, however, the majority has committed the
same error that the Court of Appeals committed in construing § 504
-- in its effort to reach the result it desires, it ignores the
plain language of the statute it is construing.
Section 2412(d)(1)(A), by its terms, does not authorize the
recovery of fees incurred in proceedings on remand before the
Social Security Administration. That section provides in relevant
part that
"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 . . including proceedings for judicial review
of agency action, brought by or against the United States in any
court having jurisdiction of that action."
(Emphasis added.) The plain meaning of "civil action" is a
proceeding in a court,
see Black's Law Dictionary 26, 222
(5th ed.1979); Fed.Rules Civ.Proc. 2, 3, and any argument to the
contrary is foreclosed by the statute itself -- the civil action
must be one brought "in any court having jurisdiction." Clearly,
the Social Security Administration is not a court,
see 28
U.S.C. § 451 (defining "court of the United States"), and so § 2412
does not apply to fees incurred in proceedings before the Social
Security Administration.
Other language in § 2412(d)(1)(A) reinforces this conclusion.
The section includes within the meaning of "civil action" the
"judicial review of agency action." Congress thus
Page 490 U. S. 895
was perfectly capable of distinguishing between judicial review
by the courts and action by administrative agencies, such as the
remand proceedings in this case. Section 2412 contains no similar
authorization for recovery of fees for "agency action," whether or
not on remand and regardless of how essential the proceeding might
be to the claimant's ultimate recovery. In addition, the section
makes liability for fees depend on the United States' taking a
position that is not substantially justified. But in proceedings
before the Social Security Administration, the United States does
not take any position (such proceedings are not adversarial, as the
majority agrees), and so the majority's reading of the statute
makes fee liability depend on a
non sequitur.
Section 504, not § 2412, is the provision of the EAJA that
governs the recovery of fees in proceedings before administrative
agencies; indeed, Congress was careful to place § 504 in Title 5 of
the United States Code, which governs procedures before
administrative agencies, while placing § 2412 in Title 28, which
governs procedures before the courts. The lack of any authorization
in § 504(a)(1) for fees under the present circumstances provides
further confirmation of the plain meaning of the EAJA. As the
majority holds, the fee authorization in § 504(a)(1) is limited to
adversary administrative adjudications, which do not include the
nonadversary proceedings before the Social Security Administration.
Applying the maxim of statutory construction
expressio unius
est exclusio alterius, the express congressional authorization
for recovery of fees in adversary agency adjudications, coupled
with the lack of authorization for recovery of fees in nonadversary
adjudications, indicates Congress' intent not to authorize recovery
of fees in nonadversary agency adjudications.
See TVA v.
Hill, 437 U. S. 153,
437 U. S. 188
(1978).
The majority's dismissal of these arguments misses the mark.
First, the majority takes the position that a "civil action"
includes remand proceedings before the Social Security
Administration because a formal complaint remains pending
Page 490 U. S. 896
in court and depends on the outcome of the administrative
proceeding for its resolution.
Ante at
490 U. S. 892.
But the mere retention of jurisdiction while the case is on remand
before the agency does not transform fees incurred before the
agency into fees incurred before the court. It was the Social
Security Administration that conducted the proceedings on remand,
and it was the Social Security Administration that ultimately made
the award of benefits in this case, not the District Court. All the
District Court did was to dismiss respondent's petition for
judicial review once the agency had made its award on remand, which
surely is not enough to characterize the agency proceedings as part
of an ongoing civil action in court.
In this regard, the majority's reliance on
Pennsylvania v.
Delaware Valley Citizens' Council, 478 U.
S. 546 (1986), and
New York Gas Light Club, Inc. v.
Carey, 447 U. S. 54
(1980),
see ante at 880-890, is misplaced. In
Delaware
Valley, we interpreted § 304(d) of the Clean Air Act, 42
U.S.C. § 7604(d), which allows the "court" to award fees "in
issuing any final order in any action brought pursuant to" § 304(a)
of the Act, as allowing recovery of fees incurred in enforcing a
consent decree in administrative proceedings. But that Act applied
to fee awards in "any action" brought under the Act, and did not
expressly limit the award to fees "incurred . . . in any civil
action . . . brought . . . in any court," as the statute does here.
Moreover, the legislative history of the Clean Air Act equated
"action" with "proceeding," suggesting a broader meaning to the
term, and certainly did not expressly reject the construction we
gave to the statute.
Cf. infra at
490 U. S.
897-899. The same is true of
Carey, in which
this Court construed 42 U.S.C. § 2000e-5(k), authorizing "the
court" to award fees "[i]n any action or proceeding under this
title," as well as
Webb v. Dyer County Bd. of Education,
471 U. S. 234,
471 U. S. 243
(1985) (construing 42 U.S.C. § 1988), and
North Carolina Dept.
of Transportation v. Crest Street Community Council, Inc.,
479 U. S. 6,
479 U. S. 15
(1986) (same), also cited by the
Page 490 U. S. 897
majority. In short, these decisions have no application to the
EAJA, because its plain language indicates otherwise, as even the
Court of Appeals in this case recognized. 839 F.2d 1453, 1459 (CA11
1988).
Second, the majority rejects any negative implication from the
express coverage of adversary agency adjudications by the statute.
The majority reasons that the fact that
"Congress carved the world of EAJA proceedings into 'adversary
adjudications' and 'civil actions' does not necessarily speak to,
let alone preclude, a reading of the term 'civil action' which
includes administrative proceedings necessary to the completion of
a civil action."
Ante at
490 U. S. 892.
But of course that necessarily is what the statute does. Maxims of
statutory construction tell us what Congress ordinarily means when
it expresses itself in certain ways. When Congress "carved the
world of EAJA proceedings into
adversary [agency]
adjudications' and `civil actions,'" excluding nonadversary agency
adjudications, it meant that nonadversary agency adjudications,
including remand proceedings before the agency, are not covered by
the EAJA. The majority's argument is no more than fancy
footwork.
I find the statutory language plainly and unambiguously to
preclude the construction given the EAJA by the majority. But even
if the language of the statute might somehow be seen as ambiguous,
its legislative history makes unmistakably clear that Congress did
not intend fees to be awarded under the EAJA for work done in
proceedings on remand before the Social Security
Administration.
Little need be said, because the legislative history is so
straightforward. That history makes clear that, in reenacting the
EAJA, Congress considered and rejected a provision that would have
extended the EAJA to administrative proceedings before the Social
Security Administration, including those on remand from district
court. An early version of the 1984 bill reenacting the EAJA
defined adversary adjudications to include "hearings pursuant to
section 205 and section
Page 490 U. S. 898
1631 of the Social Security Act." S.Rep. No. 98-586, pp. 16, 33
(1984). This version was rejected by the House, 130 Cong.Rec.
24828-24829 (1984) (remarks of Rep. Morrison), and not included in
the bill as passed by Congress,
id. at 29280 (remarks of
Sen. Heflin), which was ultimately vetoed by the President. The
bill that was passed by Congress in 1985 and ultimately signed into
law likewise did not contain that language. Senator Heflin, an
active supporter of the provision extending the EAJA to Social
Security proceedings, acknowledged that this effort failed because
of "institutional opposition." He stated:
"While I believe this is an area ripe for protection, political
realities dictate otherwise. And this seems to be a fight which
will have to be fought another day."
131 Cong.Rec. 20350 (1985).
There is no suggestion in the legislative history that remand
proceedings were somehow included elsewhere in the EAJA. To the
contrary, the House Report on the 1985 reenactment expressly states
that fees cannot be recovered under the EAJA in precisely the
situation facing the Court. The House Report reads as follows:
"The court will usually decline to make an award upon the remand
decision because the remand order did not yet make the applicant a
'prevailing party,' and therefore eligible under the EAJA. . . .
[T]he remand decision is not a 'final judgment,' nor is the agency
decision after remand. Instead, the District Court should enter an
order affirming, modifying, or reversing the final HHS decision,
and this will usually be the final judgment that starts the 30 days
running. . . . As . . . courts have found the only fees which will
be available will be for those activities
undertaken in
connection with the initial proceedings, and not those associated
with the administrative proceeding."
H.R.Rep. No. 99-120, pt. 1, pp.19-20 (1985) (emphasis added).
This discussion does not, as respondent asserts, refer only to the
initial administrative proceeding, and not the proceeding
Page 490 U. S. 899
on remand. Instead, this language affirms what the language of
the EAJA likewise makes plain: that the EAJA does not authorize
recovery of fees incurred in remand proceedings before the Social
Security Administration.
Our duty is to apply statutes as they were enacted by Congress,
not to take it upon ourselves to overcome the "political realities"
that blocked what we might consider to be good legislation. However
desirable it might be as a matter of policy for Social Security
claimants to be able to recover attorney's fees for proceedings on
remand before the agency, that is not the statute that Congress
enacted. Therefore, I dissent.