# Sullivan v. Hudson

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## Dissenting Opinion

    White
United States Supreme Court
490 U.S. 877
Sullivan v. Hudson
No. 88-616 Argued: April 17, 1989. --- Decided: June 12, 1989
Syllabus
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 administrative proceedings held pursuant to a district court order remanding the action to the Secretary. Pp. 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, 100 S.Ct. 1987, 64 L.Ed.2d 670; Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866. 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 proceedin § 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, 106 S.Ct. 3088, 92 L.Ed.2d 439; New York Gas Light Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct.2024, 64 L.Ed.2d 723. 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. 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 in a nonadversarial adjudication wholly ancillary to a "civil action." Pp. 890-892.
839 F.2d 1453 (C.A.11, 1988), 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. 893.
Edwin S. Kneedler, Washington, D.C., for petitioner.
James E. Coleman, Jr., for respondent.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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