UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60126

Summary Calendar

JUATASSA SIMS,

Plaintiff-Appellant,

VERSUS

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

January 10, 2001

Before POLITZ, STEWART, and PARKER, Circuit Judges.

PER CURIAM:

Before the Court is Appellant’s Petition for Attorney Fees Under the Equal Access to Justice

Act (“Petition”). Appellant seeks attorney fees of $233,131.87 and costs of $2,367.76 as an interim

award for prevailing before the Supreme Court. Because we hold that Appellant is not a prevailing

party and that Appellee’s position was substantially justified, the Petition is DENIED. We need not

and do not address the reasonableness of the amount sought in the Petition.2 I.

Appellant initially brought this action before the district court challenging Appellee’s denial

of disabilit

y insurance benefits. The district court rejected Appellant’s contentions and affirmed the

denial of benefits. On appeal, Appellant argued that the administrative law judge (1) failed to afford

proper weight to a psychologist’s opinion that Appellant was severely depr essed; (2) improperly

excluded certain of her impairments in assessing her residual function capacity; and (3) erred in failing

to order a consultative examination. We rejected the first claim on the merits and held that we lacked

jurisdiction under Paul v. Shalala , 29 F.3d 208 (5th Cir. 1994), over the remaining claims because

Appellant failed to exhaust them before the Social Security Appeals Council. S ee Sims v. Apfel

, 200

F.3d 229, 230 (5th Cir. 1998) (per curiam). Appellant appealed to the Supreme Court, which held

tha t it was inappropriate to require Appellant to exhaust her claims before the Appeals Council,

reversed our decision, and remanded to us for further proceedings. S ims v. Apfel

, 120 S. Ct. 2080,

2086 (2000). On remand, we reviewed and rejected Appellant’s remaining claims on the merits.

Sims v. Apfel , 224 F.3d 380, 381-82 (5th Cir. 2000) (per curiam). Nonetheless, Appellant seeks

attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), based on

the remand from the Supreme Court.

II.

The EAJA provides in relevant 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 so unding 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 Uni ted States was

substantially justified

or that special circumstances make an award unjust.3

§ 2412(d)(1)(A) (emphasis added). Thus, an award of fees is mandated if (1) the claimant is a

“prevailing party”; (2) the position of the United States was not “substantially justified”; and (3) there

are no special circumstances that make an award unjust. S ee Commissioner v. Jean

, 496 U.S. 154,

158 (1990). We address only whether Appellant is a prevailing party and whether Appellee’s position

was substantially justified.

A.

A plaint iff may be considered a “prevailing party” under the EAJA “if they succeed on any

significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”

Hensley v. Eckerhart

, 4 61 U.S. 424, 433 (1983); s ee id. at n.7 (stating that the above standard is

“generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing

party.’”); Squires-Allman v. Callahan

, 117 F.3d 918, 919 (5t h Cir. 1997). However, appellate

procedural rulings in favor of the plaint iff generally do not render her a “prevailing party.” H anrahan

v. Hampton

, 446 U.S. 754, 758 (1980). While such rulings may “affect the disposition on the

merits,” they are not “matters on which a party could ‘prevail’ for purposes of shift ing his counsel

fees to the opposi ng party .” I d. ; see Huey v. Sullivan

, 971 F.2d 1362, 1367 (8th Cir. 1992 )

(“Establishing jurisdiction is a procedural victory that does not justify fee shifting.”), cert. denied sub

nom. Huey v. Shalala

, 511 U.S. 1068 (1994); Escobar v. Bowen

, 857 F.2d 644, 646 (9th Cir. 1988)

(“[E]ven a significant procedural victory which implicates substantive rights is not sufficient to make

a party a prevailing party under EAJA.”). More importantly, “a favorable judicial statement of law

in the course of litigation that results in judgment against the plaint iff does not suffice to render him

a ‘prevailing party.’” Hew itt v. Helms , 482 U.S. 755, 763 (1987).

In this action, Appellant makes a plausible argument that she is a prevailing party entitled to4

interim attorney fees for her victory before the Supreme Court. Appellant argues that the Supreme

Court’s reversal and remand was a significant issue in litigation which achieved some of the benefit

Appellant sought in bringing suit. C f. Texas State Teachers Ass’n v. Garland Ind. Sch. Dist. , 489

U.S. 782, 792 (1989) (“[A]t a minimum, to be considered a prevailing party

. . . the plaint iff must be

able to point to a resolution of the dispute which changes the legal relationship between itself and the

defendant.”). Appellant further argues that because the Supreme Court has held that a party who

obtains an order remanding an action pursuant to sentence four of § 205(g) of the Social Secur ity

Act, codified at 42 U.S.C. § 405(g), is a prevailing party under the EAJA, see Sullivan v. Hudson

,

490 U.S. 877, 892 (1989), this Court should analogously hold that the Supreme Court’s remand of

Appellant’s action renders Appellant a prevailing party.

While Appellant’s victory before the Supreme Court is significant, the facts and history of this

action militate against awarding fees to Appellant. There is no controlling authority that addresses

whether a party that wins a jurisdictional argument before the Supreme Court is a prevailing party

under fee-shifting statutes like the EAJA even if she loses the merits of her claims. But Appellant’s

action is similar to Hewitt , in which the Supreme Court held that “a favorable judicial statement of

law in the course of litigation that results in judgment against the plaint iff does not suffice to render

him a ‘prevailing party.’” Hewitt

, 482 U.S. at 763. In H ewitt

, the plaint iff, a prisoner, sued prison

o fficials under 42 U.S.C. § 1983 for convicting him of misconduct and sentencing him to disciplinary

restrictive confinement. The district court rendered summary judgment against the plaintiff on his

constitutional claims without passing on the defendants’ qualified immunity defense, but the Third

Circuit reversed and held, inter alia

, that the plaint iff’s misconduct conviction violated due process

and instructed the district court to enter summary judgm ent fo r t he plaintiff unless the defendants1 That section provides in relevant part: “In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title

. . . the court, in its discretion, may

allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the

costs.”

5 established qualified immunit y. The Supreme Court reversed the Third Circuit, but did not review

the Third Circuit’s decision on the plaintiff’s misconduct conviction. When the action reached the

Third Circuit again, that court reaffirmed its instruction to the district court to enter summary

judgment in favor of the plaint iff based on the unconstitutionality of the misconduct conviction unless

the defendants est ablished qualified immunity. The district court on remand entered summary

judgment for the defendants on all claims based on qualified immunit y. Then t he plaintiff sought

attorney fees under 42 U.S.C. § 1988(b). 1 The district court denied the plaintiff’s request partially

based on the fact that the defendants’ qualified immunit y precluded damages and thus did not render

the plaint iff a prevailing party under § 1988(b). The Third Circuit reversed the district court and held,

inter alia

, that its prior ruling that the defendants violated the plaint iff’s due process rights was a form

of “judicial relief” that rendered the plaint iff a prevailing party under § 1988(b). On appeal the

Supreme Court reversed the Third Circuit and held that because the plaintiff obtained no damages

and hence no relief, he was not a prevailing party under § 1988(b). The Supreme Court added that

although the Third Circuit’s decision may indeed be “relief,” ultimately the plaintiff did not prevail

because he “obtained nothing from the defendants.” Hewitt , 482 U.S. at 761-62.

Likewise, although Appellant may have obtained “relief” from the Supreme Court reversing

this Court’s jurisdictional decision, she did not obtain anything from Appellee on the merits of her

claims. The dist rict court did not address the jurisdictional argument in rejecting the merits of

Appellant’s claims. We affirmed the district court’s rejection of one of Appellant’s claims and held6

that her remaining claims were jurisdictionally barred based on issue exhaustion. S ims

, 200 F.3d at

230. The Supreme Court reversed our jurisdictional finding and remanded for further proceedings.

Sims

, 120 S. Ct. at 2086. On remand we reviewed the merits of Appellant’s remaining claims and

affirmed the district court. S ims

, 224 F.3d at 381-82. In light of these decisions, Appellant’s success

before the Supreme Court does not render her a prevailing party because the Supreme Court did not

order any relief relating to the merits of Appellant’s claims , and Appellant received nothing from

Appellee. S ee Hewitt

, 482 U.S. at 762. Additionally, the remand from the Supreme Court to this

Court cannot be analogized to a remand under sentence four of § 405(a) because a sentence-four

remand “terminates the litigation with victory for the plaintiff,” Shalala v. Schaefer , 509 U.S. 292,

301 (1993), whereas the Supreme Court’s remand in this action neither terminated the litigation in

favor of Appellant nor addressed the merits of Appellant’s claims. The Supreme Court’s remand is

more anal o go us t o a remand under sentence six of § 405(g), which permits a remand to the

Commissioner of Social Security for further action. S ee Squires-Allman

, 117 F.3d at 919 n.2 (“One

does not become a prevailing party merely because the Secretary’s request for a remand is granted

under sentence six. Instead, the party must actually succeed in receiving some substantial benefit that

was sought in the original appeal because of the remand.”); Escobar

, 857 F.2d at 646. The Supreme

Court’s decision in this action is only a procedural victory on which Appellant cannot “prevail” for

purposes of shifting his counsel fees to the opposing party. See Hewitt , 482 U.S. at 763; cf. Huey

,

971 F.2d at 1367; Escobar , 857 F.2d at 646.

B.

Even assuming Appellant is a prevailing party under the EAJA, she is not entitled to attorney

fees if the position of the United States was “substantially justified.” § 2412(d)(1)(A). “Substantially7

justified” means “justified in substance or in the main–that is, justified to a degree that could satisfy

a reasonable person.” P ierce v. Underwood

, 487 U.S. 552, 565 (1988). In other words, it means

a “reasonable basis both in law in fact.” I d. “To be ‘substantially just ified’ means . . . more than

merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government

litigation of which a reasonable person would approve.” Id. (footnote om itted).

The fact that one other court agreed or disagreed with the Governme nt does not

establish whether its position was substantially justified. Conceivably, the

Government could take a position that is not substantially justified, yet win; even

more likely, it could take a position that i s substantially justified, yet lose.

Nevertheless, a string o f lo sses can be indicative; and even more so a string of

successes.

Id. at 2552. “Whether or not the position of the United States was substantially justified shall be

determined on the basis of the record (including the record with respect to the action or failure to act

by the agency upon which the civil action is based) which is made in the civil action for which fees

and other expenses are sou ght .” § 2412(d)(1)(B). “[T]he EAJA–like other fee-shifting

statutes–favors treating a case as an inclusive whole, rather than as atomized line-items.” J ean

, 496

U.S. at 161-62. The United States has the burden of establishing that its position was substantially

justified. Herron v. Bow en , 788 F.2d 1127, 1130 (5th Cir. 1986).

Appellant raises three points on whether Appellee’s position was substantially justified. First,

Appellant argues that Appellee’s position init ially before this Court wa s unjustified in light of

controlling precedent. Second, Appellant argues that Appellee failed to properly place the issue of

exhaustio n before this Court by not objecting to the magistrate judge’s findings and by not

cross-appealing the district court’s j udgment. Finally, Appellant argues that Appellee’s administrative

position was deceptive and misleading.8

None of these arguments have merit. First, Appellee’s position, that Appellant must seek

issue exhaustion befo re the Appeals Council, before us was justified because it relied on our

controlling decision in Paul

, which held that a claimant’s failure to exhaust administrative remedies

deprived us of jurisdiction to review her claims. 29 F.3d at 210. Moreover, the Supreme Court in

Sims unanimously agreed that in most cases, issue ex haust io n is a necessary predicate for federal

ju dicial review. S ims

, 120 S. Ct. at 2084, 2086 & 2087-88. The Justices narrowly split 5-4 on

whether an exception to that predicate should be crea t ed under Social Security laws. Second,

because we erroneously treated issue exhaustion as a jurisdictional matter, Appellee did not have to

object to the magistrate judge’s findings or cross-appeal the district court’s judgment. Finally, there

is no evidence in the record suggesting that Appellee’s admi nist rative position was deceptive and

misleading. Therefore, Appellee’s position was substantially justified, and Appellant is not entitled

to attorney fees under the EAJA.

Appellant’s Petition is DENIED.