PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

 

No. 10-1021

_____________

JOHN D. HANDRON, Ph. D., 

 Appellant

v.

SECRETARY DEPARTMENT OF HEALTH 

AND HUMAN SERVICES, 

c/o General Counsel Dept of Health 

and Human Services 

_____________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-08-cv-03119)

District Judge: Honorable Robert B. Kugler

_____________ 

Argued January 11, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges

(Opinion Filed: April 20, 2012) 

_____________
2

John D. Handron, Ph. D.

21 Shadow Lane

Cape May Courthouse, NJ 08210

 Pro se Appellant

James B. Clark, III. Esq.

Office of the United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Rachel H. Park, Esq. [ARGUED]

U.S. Department of Health

& Human Services

Office of General Counsel

26 Federal Plaza

New York, NY 10278

 Counsel for Appellee

David M. Laigaie, Esq. [ARGUED]

Dilworth Paxson

1500 Market Street, Suite 3500E

Philadelphia, PA 19102

 Counsel for Amicus Appellant

 Court Appointed Amicus Curiae

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

Dr. John Handron, a psychologist, appeals from the 

denial of his request for counsel fees following his challenge 
3

to the government’s claim that he had overbilled Medicare

and owed the government more than $600,000 in 

overpayments. At an ALJ hearing to contest the 

government’s claim, Dr. Handron presented extensive

evidence, but the government neither appeared nor presented 

argument or advocacy, either written or in person. The ALJ 

concluded that the overpayment was actually $5,434.48. Dr. 

Handron then moved, pursuant to the Equal Access to Justice 

Act (“EAJA”), 5 U.S.C. § 504(a)(1), to recoup the tens of 

thousands of dollars in attorneys’ fees and expenses he 

incurred in fighting the overpayment demand. His request for 

fees was denied by an administrative appeals council and the 

District Court based on their conclusion that the hearing 

before the ALJ was not an “adversary adjudication,” as is 

required for an award of fees under the EAJA. 

While we sympathize with Dr. Handron’s plight, we 

are constrained to agree with the determination that, given the 

statutory definition of an “adversary adjudication,” his 

request was properly denied. At the same time, we disagree 

with the District Court’s ruling that the mere fact that the 

government did not appear in person at the hearing was a 

sufficient basis upon which to conclude that the adjudication 

was not adversary in nature. 

I.

a. The EAJA

The EAJA was passed, in large part, to allow 

individuals and small businesses to fight back against 

unjustified government action, without fear that the high cost 

of doing so would make victory ultimately more expensive 

than acquiescence. H.R. Rep. No. 96-1418, at 5-6 (1980), 
4

reprinted in 1980 U.S.C.C.A.N. 4984; John J. Sullivan, Note, 

The Equal Access to Justice Act in the Federal Courts, 84 

Colum. L. Rev. 1089, 1092-93 (1984). It empowers parties 

who prevail against the government, either in an 

administrative proceeding or in a civil action, to collect their 

fees and other expenses from the government. 5 U.S.C. § 

504(a)(1)1; 28 U.S.C. § 2412(d)(1)(A)2. However, Congress 

 

1

That sub-section reads, in relevant part, as follows:

An agency that conducts an adversary 

adjudication shall award, to a prevailing party 

other than the United States, fees and other 

expenses incurred by that party in connection 

with that proceeding, unless the adjudicative 

officer of the agency finds that the position of 

the agency was substantially justified or that 

special circumstances make an award unjust.

5 U.S.C. § 504(a)(1).

2

That sub-section provides: 

[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 

(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). 
5

placed several limitations on a party’s ability to recover fees 

under the EAJA. Relevant here, parties who prevail against 

the government in an agency proceeding can only collect their 

fees under the EAJA if the proceeding was an “adversary 

adjudication.” 5 U.S.C. § 504(a)(1). An “adversary 

adjudication” is defined, in relevant part, as “an adjudication 

under section 554 of [Title 5, United States Code] in which 

the position of the United States is represented by counsel or 

otherwise, but excludes an adjudication for the purpose of 

establishing or fixing a rate or for the purpose of granting or 

renewing a license.” 5 U.S.C. § 504(b)(1)(C). 

The House Report for the bill makes clear that the 

adversary adjudication requirement was designed, in part, to 

“narrow the scope of the bill in order to make its costs 

acceptable.” H.R. Rep. No. 96-1418, at 14, reprinted in 1980 

U.S.C.C.A.N. 4984, 4993; see also id. at 20, reprinted in 

1980 U.S.C.C.A.N. 4984, 4999 (“[T]he Committee has 

eliminated non-adversary adjudications (including 

administrative proceedings under the Social Security Act) 

from the coverage of the principal part of this bill, and 

believes that is a significant factor in reducing the cost.”). 

That report also commented that “[i]t is basic fairness that the 

United States not be liable in an administrative proceeding in 

which its interests are not represented.” Id. at 12, reprinted in

1980 U.S.C.C.A.N. 4984, 4991. The Conference Report for 

the bill stated that the definition of “adversary adjudication” 

was intended to “preclude[] an award in a situation where an 

agency, e.g., the Social Security Administration, does not take 

a position in the adjudication.” H.R. Conf. Rep. 96-1434, at 

23 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5012.
6

In 1985, when Congress reauthorized3and amended 

the EAJA, it reaffirmed the adversary adjudication 

requirement. The House report noted the following:

One issue which needs clarification is what 

coverage, if any, is allowed under the Equal 

Access to Justice Act for Social Security 

Administration hearings at the administrative 

level. As enacted in 1980, the Act covers 

“adversary adjudications”—i.e., an adjudication 

under Section 554 of Title 5, United States 

Code “in which the position of the United 

States is represented by counsel or otherwise.” 

While this language generally excludes Social 

Security Administrative hearings from the Act, 

Congress made clear in 1980 that “If * * * the 

agency does take a position at some point in the 

adjudication, the adjudication would then 

become adversarial,” and thus be subject to the 

Act. It is the committee’s understanding that 

the Secretary of Health and Human Services has 

implemented an experiment in five locations in 

which the Secretary is represented at the 

hearing before the administrative law judge. 

This is precisely the type of situation covered 

by section 504(b)(1)(C). While, generally, 

Social Security administrative hearings remain 

outside the scope of this statute, those in which 

 

3

The EAJA as originally passed included a sunset provision. 

In 1985, Congress repealed the sunset provision and made the 

EAJA permanent. See H.R. Rep. No. 99-120, at 20-21, 29

(1985), reprinted in 1985 U.S.C.C.A.N. 132, 149.
7

the Secretary is represented are covered by the 

Act.

H.R. Rep. No. 99-120, at 10 (1985), reprinted in 1985 

U.S.C.C.A.N. 132, 138-39 (quoting H.R. Conf. Rep. 96-1434, 

at 23, reprinted in 1980 U.S.C.C.A.N. 5003, 5012) (emphasis 

and ellipsis in original).

The EAJA also tasked the Administrative Conference 

of the United States with interpreting the statute and 

developing model rules. See Scafar Contracting, Inc. v. Sec’y 

of Labor, 325 F.3d 422, 428 n.4 (3d Cir. 2003); 5 U.S.C. § 

504(c)(1) (“After consultation with the Chairman of the 

Administrative Conference of the United States, each agency 

shall by rule establish uniform procedures for the submission 

and consideration of applications for an award of fees and 

other expenses.”). The Administrative Conference’s model 

rule implementing 5 U.S.C. § 504 states that an agency 

proceeding is an “adversary adjudication” under the EAJA if 

“the position of this or any other agency of the United States, 

or any component of any agency, is presented by an attorney 

or other representative who enters an appearance and 

participates in the proceeding.” 46 Fed. Reg. 32,900, 32,912 

(June 25, 1981). The Department of Health and Human 

Services (“HHS”) adopted that model rule in substantially 

similar form when it promulgated regulations. 45 C.F.R. § 

13.3(a).4

 

4

That provision reads as follows:

These rules apply only to adversary 

adjudications. For the purpose of these rules, 

only an adjudication required to be under 5 

U.S.C. 554, in which the position of the 
8

HHS has also adopted regulations defining when the 

government—through the Centers for Medicare and Medicaid 

Services (“CMS”) or one of its contractors—may participate 

in an ALJ hearing. Participation is specifically defined and 

“may include filing position papers or providing testimony to 

clarify factual or policy issues in a case.” 42 C.F.R. § 

405.1010(c). The regulations permit the ALJ to “request” 

such participation, but the ALJ “may not require” it. Id. § 

405.1010(a). Even if CMS or its contractors do participate, 

they may not be called as witnesses during the hearing. Id. § 

405.1010(d).

b. Dr. Handron’s case

Dr. Handron participated in the Medicare Part B 

program, treating nursing home patients and receiving 

reimbursement payments from Medicare. In August 2003, he 

received a letter from Empire Medicare Services, on CMS

letterhead, informing him that he had been overpaid from the 

Medicare program in the amount of $604,038. The letter 

 

Department or one of its components is 

represented by an attorney or other 

representative (“the agency’s litigating party”) 

who enters an appearance and participates in the 

proceeding, constitutes an adversary 

adjudication. These rules do not apply to 

proceedings for the purpose of establishing or 

fixing a rate or for the purpose of granting, 

denying, or renewing a license.

45 C.F.R. § 13.3(a).
9

stated that the “overpayment occurred because documentation 

did not support the services billed.” (A100.) 

The letter was sent after an extensive review of Dr. 

Handron’s requests for reimbursement from Medicare. Jana 

Clark, a nurse working for Eastern Benefits Integrity Center 

(“EA-BISC”), a government contractor, reviewed a sample of 

Dr. Handron’s Medicare claims from November 1994 to 

January 2001 to determine whether payments made to him

were appropriate given the documents supporting his bills. 

Clark prepared a 64-page spreadsheet listing the more than 

2,500 claims she reviewed. She assigned each claim one or 

more of fourteen codes, each of which represented a decision 

either to allow or deny a claim, along with a brief explanation 

of the reason for denial. Clark explained the codes’ meaning 

in a two-page printed legend. EA-BISC determined from this 

audit that Medicare overpaid Dr. Handron by $125,696.71 for 

the claims Clark reviewed. It was extrapolated from that 

sample that Medicare had overpaid Dr. Handron by a total of 

$604,038 over his entire claims history.

Dr. Handron hired a lawyer and challenged the 

government’s accusation. He first filed an administrative 

appeal, and a Fair Hearing Officer largely upheld the 

government’s overpayment determination. He then requested 

a hearing before an ALJ pursuant to 42 C.F.R. § 405.1002(a), 

which took place on June 21-22 and July 24, 2007. Dr. 

Handron appeared at this hearing along with his attorney, and 

he testified on his own behalf. Dr. Handron also presented 

expert testimony from Christopher Barbrack, a psychologist, 

concerning the provision and documentation of psychological 

services. The ALJ requested that CMS or one of its 

contractors appear as a non-party participant in the hearing, 

but no one filed a brief or sent a representative to the hearing
10

on behalf of the government. CMS did, however, provide the 

ALJ with documents he requested to explain the procedure its 

consultants used to sample Dr. Handron’s claims and 

extrapolate findings therefrom. 

The ALJ reviewed Clark’s spreadsheet and legend, 

which detailed the claims that EA-BISC reviewed and 

explained the reasons EA-BISC felt the claims should be 

disallowed. Also before the ALJ were twenty-five boxes of 

medical records from Dr. Handron’s treatment of Medicare 

patients. 

The ALJ slashed the government’s overpayment 

request, determining that the overpayment to Dr. Handron 

was actually only $5,434.48. He found that EA-BISC failed 

to meet its burden of establishing an overpayment as to some 

of the claims and that some of the claims were outside of the 

limitations period for an overpayment action. He then 

examined each of Clark’s fourteen codes and analyzed 

whether EA-BISC had met its burden of showing that each 

claim in its sample should be disallowed. Of the $125,696.71 

of supposed overpayments that EA-BISC found in the sample 

claims, the ALJ found that only $5,434.48 was properly 

deemed overpayment. As to EA-BISC’s “extrapolation” 

from the claims sample it reviewed, the ALJ sought input 

from an expert statistician, who concluded that the sampling 

was skewed against Dr. Handron in a way that exaggerated 

the extent of any overpayment indicated by the sample. 

Accordingly, the ALJ held that “the sampling procedures 

followed by EA-BISC in this case were unreliable and that 

the resultant extrapolation is invalid.” (A80.) Therefore, the 

ALJ held that only the $5,434.48 of overpayment he found 

warranted in EA-BISC’s sample of claims could be charged 

to Dr. Handron.
11

Dr. Handron thereafter filed an application pursuant to 

the EAJA, 5 U.S.C. § 504, to collect from HHS the attorneys’

fees and expenses he incurred in presenting his case against 

the overcharge claim. The ALJ denied this application, 

holding that the position of the government was not 

represented at the hearing and that, therefore, Dr. Handron 

did not qualify for fee reimbursement under the EAJA. Dr. 

Handron appealed the ALJ’s decision regarding fees to 

HHS’s Medicare Appeal Council (“MAC”), which adopted 

the ALJ’s decision denying an EAJA fee award. 

In June 2008, Dr. Handron filed a complaint in the 

District Court for the District of New Jersey appealing 

MAC’s decision disallowing EAJA fees. He moved for 

summary judgment in March 2009. The District Court denied 

Dr. Handron’s motion and affirmed MAC’s denial of EAJA 

fees. Handron v. Sebelius, 669 F. Supp. 2d 490, 501 (D.N.J. 

2009). 

Recognizing that the government’s position was not 

represented at the ALJ hearing “by counsel,” the District 

Court examined the meaning of the words “or otherwise” in 

the EAJA’s definition of an adversary adjudication, 5 U.S.C. 

§ 504(b)(1)(C), and found the statutory language ambiguous. 

669 F. Supp. 2d at 495. The District Court then looked to the 

statute’s legislative history and concluded that “Congress did 

not intend that the EAJA would apply simply because a 

person was fighting adverse government action[;] rather[,] 

Congress only intended that the EAJA would apply when the 

government participated in the proceeding.” Id. at 496. The 

District Court examined out-of-circuit case law and found 

that it supported the position that a person representing the 

government must physically appear at the hearing for it to 

constitute an adversary adjudication under the EAJA. Id. at 
12

497-99. The District Court found further support for its 

conclusion in the Administrative Conference’s model rules, 

which state that a proceeding is adversarial if a government 

representative enters an appearance and participates in the 

proceeding. Id. at 499-500 (citing 46 Fed. Reg. 32,900, 

32,912). Finally, the District Court reviewed the statute and 

concluded that “[t]he word ‘represented’ in [the] context of 

being coupled with ‘by counsel’ suggests that the statute 

requires some level of advocacy.” Id. at 500. The District 

Court then stated that “[a]dvocacy, in turn, in the context of a 

live adjudication seems to impart some modicum of real-time 

interplay with the fact-finder.” Id. Since the government did 

not send someone to physically represent it at Dr. Handron’s 

ALJ hearing, the District Court concluded that the EAJA did 

not apply to his case. It therefore denied Dr. Handron’s 

motion for summary judgment and dismissed his case. 

Dr. Handron appealed. We have jurisdiction pursuant 

to 28 U.S.C. § 1291. Our review of the District Court’s 

interpretation of the EAJA is plenary. Kadelski v. Sullivan, 

30 F.3d 399, 400 (3d Cir. 1994). 

II.

a.

We begin by asking whether the District Court was 

correct in concluding that an agency hearing is not an 

“adversary adjudication” under the EAJA unless an individual 

representing the government appears at the proceeding in 

person. We believe this is a misreading of the statute.

Nothing in the plain text of the statute supports the 

specific meaning that the District Court and the government

attribute to the words “represented by counsel or otherwise” 

in 5 U.S.C. § 504(b)(1)(C). To “represent” means to “stand[]
13

for or act[] on behalf of another, esp. by a lawyer on behalf of 

a client.” Black’s Law Dictionary 1416 (9th ed. 2009). And 

“otherwise” is an open-ended term, meaning “in a different 

way or manner.” Begay v. United States, 553 U.S. 137, 144 

(2008) (citing Webster’s Third New International Dictionary 

1598 (1961)); id. at 151 (Scalia, J., concurring) (citing 

Webster’s New International Dictionary 1729 (2d ed. 1957)). 

Congress did not specify in what way or manner the position 

of the United States could be represented, other than by 

counsel, and still implicate the EAJA. 

If Congress wanted to limit the EAJA’s applicability to 

cases in which an individual representing the government 

physically appeared at an agency proceeding, it could have so 

stated. The statute does not say that the government’s 

position must be represented “by counsel or other individual 

appearing on its behalf.” Such language would indicate the 

necessity of the actual presence at the hearing of someone 

representing the government, but that was not the language 

Congress chose. 

Instead, Congress chose language that left open the 

possibility that the government’s position could be 

represented in some other manner and by someone other than 

a lawyer. This indicates Congress’s recognition that the 

position of the United States can be represented in many ways 

and its desire to grant judges some discretion in determining 

whether particular action “represents” the government’s 

position. It does not suggest that the government’s position 

can only be represented at a hearing if a government 

representative physically stands before the decision-maker. 

Moreover, the fact that the statute speaks of the government’s 

position being represented, rather than the government itself, 

further suggests that a physical appearance at an agency 
14

hearing is not necessary to implicate the EAJA. While we 

speak of people being represented as meaning that they have 

advocates acting on their behalf, “[t]o represent a thing is to 

produce it publicly.” Black’s Law Dictionary 1301 (6th ed. 

1990). That production can be as part of a public record, and 

need not be in person.

Accordingly, we have little doubt that some forms of 

written advocacy submitted to an ALJ can constitute a 

representation of the government’s position, so as to make an 

agency proceeding an “adversary adjudication” for purposes 

of the EAJA. A written statement is often an effective way to 

advocate one’s position. We frequently decide cases in which 

the parties’ respective positions are represented solely by 

written submissions. See 3d Cir. L.A.R. 34.1(a) (2011). 

While the appearance of an individual at a hearing will raise

the level of advocacy for a given position, this does not mean 

that a position cannot be represented at a proceeding unless 

an individual is there to espouse the position.

The government argues that the out-of-circuit case law 

on which the District Court relied refutes the argument that 

the position of the government can be represented by a 

writing. We disagree. The government cites to Willis v. 

Sullivan, 931 F.2d 390 (6th Cir. 1991) and Rowell v. Sullivan,

813 F. Supp. 78 (D.D.C. 1993). Neither case stands for the 

broad proposition the government claims.

In Willis, a plaintiff argued that her disability 

proceedings were adversarial because the HHS Secretary’s 

counsel “responded by letter denying her request for answers 

to interrogatories and motions to produce” such that “the 

Secretary, in essence, was represented by counsel during the 

administrative proceedings on her disability claim.” 931 F.2d 

at 400. The Sixth Circuit Court of Appeals rejected that 
15

argument, saying that the government’s letter refusing to give 

substantive responses to the plaintiff’s discovery requests 

“[did] not amount to the Secretary taking a position 

represented by counsel during the administrative phase of 

Willis’ disability claim.” Id. This was not a rejection of the 

principle that a writing could serve to represent the 

government’s position. Rather, it was a straightforward 

recognition that a written refusal to respond substantively to 

discovery requests is not a representation of the government’s 

position in the underlying matter sufficient to invoke the 

EAJA.

Similarly, Rowell does not support the government’s 

sweeping position that the position of the United States can 

never be represented by a writing. In that case, an ALJ, 

Rowell, was under investigation by an HHS panel for 

potential bias. 813 F. Supp. at 79. Rowell wrote to the panel 

that was investigating him and requested that sanctions be 

levied against certain attorneys—a matter distinct from the 

panel’s investigation. Id. at 81. An HHS attorney replied in 

writing to Rowell’s request. Id. Rowell later pointed to this 

letter as an indication that the panel proceeding was an 

adversary adjudication and that he was entitled to attorneys’

fees under the EAJA. Id. The district court rejected this 

argument, saying that the HHS attorneys’ letter simply 

informed Rowell that the agency would not initiate the 

ancillary sanction proceedings Rowell requested, and that this 

did not constitute representation of the agency’s position in 

the panel investigation of Rowell’s alleged bias. Id. This was 

not a sweeping proclamation that a writing can never 

represent the government’s position, but, rather, was another 

example in which a writing was not sufficient to constitute a 

representation of the government’s position.
16

The government urges that we should defer to the rule 

that HHS has adopted, which dictates that an administrative 

proceeding is not an adversary adjudication unless a 

representative of the government enters an appearance and 

participates in the proceeding. We have said that the 

Administrative Conference’s model rules related to the 

EAJA—upon which HHS’s rule is modeled—are entitled to 

“some deference.” Scafar, 325 F.3d at 428 n.4. However, we 

have never said that we give the model rules the kind of 

strong deference described in Chevron U.S.A., Inc. v. Natural 

Resources Defense Counsel, Inc., 467 U.S. 837 (1984). 

Instead, we have only stated that the Administrative 

Conference’s model rules are entitled to some deference 

under the principles of Skidmore v. Swift & Co., pursuant to 

which an agency’s regulations are “not controlling upon the 

courts . . . [but] do constitute a body of experience and 

informed judgment to which courts and litigants may properly 

resort for guidance.” 323 U.S. 134, 140 (1944). Exercising 

Skidmore deference, a court gives the agency action weight 

according to “the thoroughness evident in its consideration, 

the validity of its reasoning, its consistency with earlier and 

later pronouncements, and all those factors which give it 

power to persuade, if lacking power to control.” Id. 

The Administrative Conference gave no explanation 

whatsoever as to why it interpreted the statutory language 

“represented by counsel or otherwise” to mean that an

individual must enter an appearance and participate in the 

proceeding. 46 Fed. Reg. 32,900, 32,912; see Handron, 669 

F. Supp. 2d at 499 (recognizing that the Administrative 

Conference gave scant attention to the meaning of “or 

otherwise”). To the extent that the Administrative 

Conference’s model rule can be interpreted to require a 

representative of the government to physically appear at the 
17

hearing, the reason for that interpretation was not explained, it 

has no inherent persuasive power, and it thus is entitled to no 

deference under Skidmore.

5

 Therefore, we find the 

government’s argument unavailing.

In sum, we disagree with the District Court’s 

conclusion that a human presence at the agency hearing is 

necessary for the government’s position to be represented 

therein. We believe that a writing can represent the 

government’s position and therefore bring a proceeding under 

the ambit of the EAJA. 

b.

Having concluded that a writing can, in certain 

instances, render an administrative hearing an adversary 

adjudication under the EAJA, we now ask whether the written 

materials to which Dr. Handron points—the demand letter, 

the Fair Hearing Officer’s decision, the boxes of medical 

records, and Nurse Clark’s spreadsheet and legend—rendered 

his ALJ hearing an adversary adjudication under 5 U.S.C. § 

504. We find that they do not.

 

5 HHS’s rule does not, on its face, require that an individual 

physically appear at the proceeding for it to be considered an 

adversary adjudication. It only requires that the agency’s 

position be represented by an attorney or other representative 

who enters an appearance and participates in the proceeding. 

45 C.F.R. § 13.3(a). We pause to note the inconsistency 

between a requirement that the government have a physical 

presence at the hearing in order for its position to be 

represented and the agency’s own regulations, which define 

“participation” in a proceeding to include the filing of written 

position papers. 42 C.F.R. § 405.1010(c).
18

Congress defined an “adversary adjudication” as 

requiring that “the position of the United States [be] 

represented by counsel or otherwise.” 5 U.S.C. § 

504(b)(1)(C). In determining the meaning of the words “or 

otherwise,” we are aided by principles of statutory 

interpretation. The interpretive canon of ejusdem generis 

“limits general terms which follow specific ones to matters 

similar to those specified.” Gooch v. United States, 297 U.S. 

124, 128 (1936); see also United States v. Winebarger, 664 

F.3d 388, 394 (3d Cir. 2011) (applying canon of ejusdem 

generis). Similarly, under the maxim noscitur a socciis, the 

meaning of a word is informed by the words that accompany 

it in the statute. Singh v. Ashcroft, 383 F.3d 144, 164 & n.14 

(3d Cir. 2004). Following these principles, we must read 

“otherwise” to mean that the government’s position is 

represented in a manner akin to the representation counsel 

would provide. See Pollgreen v. Morris, 911 F.2d 527, 533 

(11th Cir. 1990) (reading “otherwise” in the context of § 

504(b)(1)(C) to require representation akin to that provided 

by counsel).6This involves a minimum level of purposeful 

 

6

The Pollgreen court stated that “[t]he word ‘otherwise’ is 

more appropriately read in the context of the entire clause to 

refer to an individual who represents the position of the 

United States in a manner similar to that of counsel.” 911 

F.2d at 533. That court confronted an argument that a 

government investigator who initiated an administrative 

process had represented the government’s position. Id. It did 

not deal with the question we face here, whether a writing can 

represent the government’s position at a hearing and thereby 

make the proceeding adversarial. We therefore believe that 

the Pollgreen court’s reference to an “individual” was not a 

statement that such individual must personally appear at a 
19

advocacy of a legal position directed at the decision-maker. 

Like the writings in Willis and Rowell, the writings to which 

Dr. Handron points do not reflect that kind of purposeful 

advocacy and therefore do not implicate the EAJA. Willis, 

931 F.2d at 400 (holding that the government’s written 

response to Willis “[did] not amount to the Secretary taking a 

position represented by counsel during the administrative 

phase of Willis’ disability claim”); Rowell, 813 F. Supp. at 81 

(holding that government writing did not represent the 

government’s position). Here, the government did not take

any action to advocate for, or urge, its position before the 

ALJ. It filed no brief, gave no statement, and expressed no 

position, in writing or in person.

 Of course, the government’s position—that Dr. 

Handron had been overpaid hundreds of thousands of 

dollars—was put before the ALJ in this case, but that does not 

mean that it was “represented” at the hearing in a manner akin 

to the representation counsel would provide. Whenever there 

is an administrative proceeding of this sort, it will be because 

the government took some kind of position, like denying

disability benefits to an individual or determining that excess 

benefits have been paid to a beneficiary. The fact that the 

government previously took a position (and committed it to 

writing) cannot mean that any time such position is appealed, 

the subsequent proceeding implicates the EAJA merely 

because the writing is presented to the ALJ. Surely, the 

“adjudication” in connection with which the position must be 

represented is the actual § 554 proceeding. 

 

hearing for it to be an adversary adjudication or that the 

government’s position cannot be represented by a writing.
20

While it may seem strange to make eligibility for fee 

reimbursement contingent on whether or not the government

decides to urge its position, this was clearly the result 

Congress intended in order to give the government some 

control over its costs. The EAJA’s legislative history 

indicates that, though Congress was concerned with evening 

the playing field for those who might not otherwise be able to 

fight unjustified government action, it was also concerned 

about the public fisc. It limited the EAJA’s applicability in 

the administrative context to “adversary adjudication[s]” and 

excluded Social Security proceedings in an effort to reduce 

the statute’s costs. See H.R. Rep. No. 96-1418, at 14, 

reprinted in 1980 U.S.C.C.A.N. 4984, 4993 (noting that part 

of the reason the Act “covers only adversary adjudications 

under 554 of title 5” is a “desire to narrow the scope of the 

bill in order to make its costs acceptable”); id. at 20, reprinted 

in 1980 U.S.C.C.A.N. 4984, 4999 (“[T]he Committee has 

eliminated non-adversary adjudications (including 

administrative proceedings under the Social Security Act) 

from the coverage of the principal part of this bill, and 

believes that is a significant factor in reducing the cost.”); 

H.R. Rep. No. 99-120, at 10, reprinted in 1985 U.S.C.C.A.N. 

132, 138-39 (“While, generally, Social Security 

administrative hearings remain outside the scope of this 

statute, those in which the Secretary is represented are 

covered by the Act.”); see also H.R. Rep. No. 96-1418, at 12, 

reprinted in 1980 U.S.C.C.A.N. 4984, 4991 (“It is basic 

fairness that the United States not be liable in an 

administrative proceeding in which its interests are not 

represented.”). This history makes clear that Congress 

intended to allow the government to avoid taking a position in

certain administrative proceedings and thereby not subject 

itself to possible liability for attorneys’ fees under the EAJA. 
21

That is exactly what happened here. The government did not 

file a brief with the ALJ, let alone make an appearance to 

urge that its position be adopted. While the government did 

provide the ALJ with a description of the statistical 

methodology it used to arrive at its figure, this did not rise to 

the level of purposeful advocacy directed at the decisionmaker that would render Dr. Handron’s hearing an adversary

adjudication under the EAJA. See Pollgreen, 911 F.2d at 

533. Therefore, although we disagree with the test the 

District Court applied, we agree with its conclusion that Dr. 

Handron’s ALJ hearing was not an adversary adjudication 

and that he is not entitled to collect his fees under the EAJA.

III.

While we conclude from the statutory language and 

legislative history that Dr. Handron’s ALJ proceeding was not 

an adversary adjudication, we wonder if, given the context in 

which the EAJA was passed, Congress really would intend 

this result in today’s world. As noted above, Congress 

wanted to make clear that Social Security administrative 

proceedings are not adversary adjudications unless the 

government is represented at the hearings. H.R. Rep. No. 96-

1418, at 20, reprinted in 1980 U.S.C.C.A.N. 4984, 4999;

H.R. Conf. Rep. 96-1434, at 23, reprinted in 1980 

U.S.C.C.A.N. 5003, 5012 (remarking that the definition of 

“adversary adjudication” was intended to “preclude[] an 

award in a situation where an agency, e.g., the Social Security 

Administration, does not take a position in the adjudication”); 

H.R. Rep. No. 99-120, at 10, reprinted in 1985 U.S.C.C.A.N. 

132, 138-39. Congress has never indicated that overpayment 

hearings are to be treated any differently from hearings 

concerning Social Security eligibility, leading us to the 

conclusion that Dr. Handron’s ALJ hearing—like Social 
22

Security hearings in which the government makes no attempt 

to advocate its position directly to the decision-maker—does 

not fit the statutory definition of adversary adjudication. 

However, there are differences between the two types of 

hearings. While it seems fair that a Social Security claimant 

should have to prove his case, and the government can decide 

not to contest it, we wonder if it is equally fair that someone 

in Dr. Handron’s position has to essentially disprove the 

government’s case, with the government choosing not to put 

forth its position. Even though the government’s position 

was not “represented” at the hearing, Dr. Handron effectively 

had to rebut that position in order to prevail. As Dr. Handron 

notes, his case strongly resembles many of the circumstances 

that prompted Congress to pass the EAJA. See generally 

Award of Attorneys Fees Against the Federal Government: 

Hearings Before the Subcommittee on Courts, Civil Liberties 

and the Administration of Justice of the Committee on the 

Judiciary of the House of Representatives, 96th Cong. (1980) 

(Serial No. 62). He was forced to go to great lengths and 

incur significant expense to combat a government allegation 

that would have been potentially ruinous for him financially. 

The fact that the government did not advocate for its position 

before the ALJ may have made his challenge slightly easier to 

win, but merely by taking the position initially, the 

government all but ensured that Dr. Handron would have to 

fight tooth and nail—at substantial financial cost—to be 

vindicated. To the extent that one of the objectives of the 

EAJA was to ensure that private parties are able to fight 

unjustified government actions, that objective was implicated 

in Dr. Handron’s case.

Although we understand Congress’s desire to control 

costs, we do not believe that allowing an individual like Dr. 

Handron to satisfy the “adversary adjudication” prong of the 
23

EAJA test would open the floodgates to fee awards. The 

government’s financial interests are additionally protected by 

the statutory scheme that provides that, even if the 

government loses in an “adversary adjudication,” it will not 

have to pay EAJA fees if it can show that its position was 

“substantially justified” or if “special circumstances make an 

award unjust.” 5 U.S.C. § 504(a)(1). These statutory 

provisions provide additional protection for the government 

based on the unique circumstances of the case.

Congress has previously amended the EAJA to 

broaden the scope of the EAJA’s application in response to 

judicial interpretation of the statute. For instance, after courts

interpreted the “position of the United States” narrowly to 

include only the position taken by the government in

litigation, Congress responded by amending the statute to 

define that statutory language more broadly. See Act of Aug. 

5, 1985, Pub. L. 99-80, § 2(c)(2)(B), 99 Stat. 183 (codified at 

28 U.S.C. § 2412(d)(2)(D)); H.R. Rep. No. 99-120, at 11-12, 

reprinted in 1985 U.S.C.C.A.N. 132, 139-40 (explicitly 

repudiating the holdings in Spencer v. N.L.R.B., 712 F.2d 539 

(D.C. Cir. 1983) and Del Mfg’r Co. v. United States, 723 F.2d 

980 (D.C. Cir. 1983)).

7

 

 

7 A parallel provision, enacted in the same bill, broadly 

defined the statutory language “position of the agency.” See 

Act of Aug. 5, 1985, Pub. L. 99-80, § 1(c)(3), 99 Stat. 183 

(codified at 5 U.S.C. § 504(b)(1)(E)). This amendment, 

however, offers no comfort to those who are forced to fight 

the government in an agency proceeding at which the

government makes no effort to advocate to the decisionmaker in support of its position. Such a circumstance would 

still not be considered an adversary adjudication, a 
24

Given Congress’s rationale in passing the EAJA, we 

wonder whether, with the complex and burdensome battle 

that doctors may have to wage in order to vindicate their 

rights when accused of overbilling the government, Congress 

might consider amending the EAJA so that persons in Dr. 

Handron’s position are not disadvantaged by the 

government’s decision not to represent its position in 

proceedings before ALJs. We leave this policy consideration 

to the lawmakers in Washington, should they wish to 

entertain it.

IV.

In conclusion, unlike the District Court, we do not 

believe that an adversary adjudication under 5 U.S.C. § 

504(a)(1) requires the government to send a human being to 

the relevant agency proceeding. Rather, we hold that an 

adversary adjudication under 5 U.S.C. § 504(a)(1) requires 

that the government direct some purposeful advocacy at the 

decision-maker, whether written or in person. That 

requirement was not met in this case. We will therefore 

affirm.

 

prerequisite to recovery under § 504 that Congress expressly 

reaffirmed in 1985. H.R. Rep. No. 99-120, at 10, reprinted in 

1985 U.S.C.C.A.N. 132, 138-39.