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BURT v. HECKLER

September 19, 1984

FREDERICK BURT, Plaintiff,
v.
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: BROTMAN

 Presently before the court is a motion by Frederick Burt for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. IV 1980). This motion raises the issue of whether a plaintiff whose case is remanded by the court may be considered a prevailing party. For the reasons which follow, the court finds that such a plaintiff may be considered a prevailing party and that plaintiff's motion for attorney's fees will be granted to the extent provided below.

 I. Factual Background

 Plaintiff Frederick Burt brought an action pursuant to § 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), for a review of a final determination of the Secretary of Health and Human Services ("Secretary") denying plaintiff disability insurance benefits. After considering the matter, the court remanded this action to the Secretary for further proceedings. The ALJ to whom the case was reassigned considered the case de novo and found that the plaintiff was under a disability beginning April 27, 1982, but not prior thereto.

 Subsequently, the plaintiff submitted a Letter Memorandum to the Appeals Council arguing that the medical and vocational evidence supported an onset of disability on April 20, 1979. The Appeals Council nevertheless affirmed the decision of the ALJ.

 Thereafter, plaintiff appealed to this court which reversed the decision of the Secretary and remanded with instructions to reinstate plaintiff's benefits for a period beginning in August 1979 and continuing through April 1982. The instant petition for counsel fees followed.

 II. The Standard for Awarding Attorney's Fees Against the Government under the Equal Access to Justice Act

 The Equal Access to Justice Act ("EAJA") provides in pertinent part:

 
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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).

 The Third Circuit has on two recent occasions written extensively construing the EAJA. Dougherty v. Lehman, 711 F.2d 555 (3rd Cir. 1983); Natural Resources Defense Council v. U.S. Environmental Protection Agency, 703 F.2d 700 (3rd Cir. 1983).

 
Under the EAJA, in any civil action brought by or against the United States, a district court must award attorney's fees and other costs to the prevailing party (other than the United States), unless the court finds that the government has carried its burden of showing that its position was "substantially justified," or that special circumstances make an award unjust. Thus, in deciding whether to award fees under the EAJA the district court must determine which party prevailed, whether the government has carried its requisite burden, and accordingly, whether "substantial justification" for the government's position has been demonstrated.

 Dougherty, supra at 560.

 The government has the burden of proving that "its action giving rise to the litigation was substantially justified." Id. at 561. In defining the term, "substantially justified," the Circuit was guided by the EAJA's legislative history, which reflected Congressional intent that:

 
The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the government can show that its case had a reasonable basis both in law and fact, no award will be made. [citations omitted].

 Id.

 "For the government to show that its position had a 'reasonable basis in both law and fact,' it must:

 First, show that there is a reasonable basis in truth for the facts alleged in the pleadings. . . .

 Second, the government must show that there exists a reasonable basis in law for the theory it propounds. This is not to say that the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed. . . .

 Finally, the government must show that the facts alleged will reasonably support the legal theory ...


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