# Sullivan v. Hudson/Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion White
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 a ards 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 Secretary 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 from a district court, do not satisfy this requirement, as the majority recognizes. Ante, at 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 the EAJA allows 'any court having jurisdiction of that action' to award fees, 28 U.S.C. § 2412(d)(1)(A), . . . the statute . . . permits a court to award fees for services performed on remand before the Social Security Administration." Ante, at 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 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 § 5 4 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, 188, 98 S.Ct. 2279, 2298, 57 L.Ed.2d 117 (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 in court and depends on the outcome of the administrative proceeding for its resolution. Ante, at 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, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), and New York Gas Light Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (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 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, 243, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233 (1985) (construing 42 U.S.C. § 1988), and North Carolina Dept. of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6, 15, 107 S.Ct. 336, 341-342, 93 L.Ed.2d 188 (1986) (same), also cited by the 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 (C.A.11, 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 action ' 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 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 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), U.S.Code Cong. & Admin.News 1985, pp. 132, 148 (emphasis added).
This discussion does not, as respondent asserts, refer only to the initial administrative proceeding and not the proceeding 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" tha 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.

## 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).
Public domainPublic domainfalsefalse