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June 14, 1985


The opinion of the court was delivered by: CONNER



Plaintiff Freddy Tavarez ("Tavarez") seeks an award of costs and attorney's fees from the Secretary of Health and Human Services ("the Secretary") for legal expenses incurred in his ultimately successful effort to secure Supplemental Security Income ("SSI") benefits. Tavarez relies on § 204(a) of the Equal Access to Justice Act ("EAJA" or "the Act"), 28 U.S.C. § 2412, which provides, inter alia, that in a suit brought against the United States, the court shall award costs and reasonable attorney's fees to a private prevailing party unless "the position of the United States was substantially justified or ... special circumstances make an award unjust." Id. § 2412(d)(1)(A).

 The Government does not deny that Tavarez is a prevailing party as that term has been construed, but it contends that he is not entitled to attorney's fees because the Secretary's position in the litigation was substantially justified. The Government also objects to the large amount sought here -- $24,149.00 in attorney's fees and $4,359.85 in costs.


 Before addressing the merits of this motion, it is necessary to review the history of this case in order to put the pertinent issues in context. Tavarez first filed for SSI benefits on May 24, 1982. The Secretary denied that application on October 14, 1982. Two weeks later, Tavarez requested that the Secretary reconsider her decision, but his claim was again denied on March 3, 1983. On March 11, 1983, Tavarez requested a hearing to review the Secretary's decision, and on June 16, 1983, such a hearing was held before an administrative law judge ("ALJ").

 The ALJ heard testimony from Tavarez and received into evidence various medical records and reports. On July 19, 1983, he issued a decision. He found that "[t]he medical evidence establishes that the claimant has hansen's disease," more commonly known as leprosy, "but he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. at 16). *fn1" The ALJ also found that Tavarez had the residual functional capacity to perform work that does not involve heavy lifting and carrying or extended walking or standing. (Id.) He found that Tavarez's past work as a sewing machine operator did not involve those activities and concluded that Tavarez was therefore not "disabled" as defined in the Social Security Act. (Id.) The Appeals Council approved the ALJ's decision on January 10, 1984, thereby making it the final decision of the Secretary.

 On March 9, 1984, Tavarez commenced an action in this Court pursuant to 42 U.S.C. § 1383(c)(3) to obtain review of the Secretary's determination. After receiving two sixty-day extensions from Tavarez, the Secretary finally filed her answer on September 17, 1984. She denied that Tavarez was entitled to benefits, and stated that her decision was correct and in accordance with applicable law and regulations. Def't Answer at P 4. On October 18, 1984, Tavarez notified the Secretary that he would soon move for judgment on the pleadings pursuant to Rule 12(c), F.R. Civ.P. On November 13, 1984, Tavarez filed his motion papers and a supporting memorandum of law. The Secretary requested an extension of time to respond to the motion, which the Court granted.

 On December 14, 1984, the Secretary informed Tavarez that the Appeals Council had agreed on that day to grant him SSI benefits and to pay him back benefits from the original date of his application. Accordingly, it became unnecessary for the Government to respond to the motion; instead, counsel for the parties executed a stipulation of remand on December 20, 1984, which the Court endorsed on January 2, 1985.


 The court of appeals has established clear rules for reviewing fee applications under the EAJA. It has held that in determining whether the Government's "position" was substantially justified, a court should examine only the Government's position in litigation and not its actions during the underlying administrative proceedings. Dubose v. Connecticut Legal Services, Inc., 761 F.2d 913, slip op. at 3858 (2d Cir. 1985); Boudin v. Thomas, 732 F.2d 1107, 1115-16 (2d Cir. 1984). Obviously, in cases such as this one, where litigation is commenced to review an administrative action, the Government's position in the litigation is often the same as in the administrative proceedings. Nonetheless, the focus of the inquiry should be on the Government's litigation posture.

 The test of whether the Government's position was substantially justified is essentially one of reasonableness. Dubose, slip op. at 3859. The Government bears the burden of demonstrating the justification for its position, id., and it must make a strong showing to meet that burden. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983). However, the Government cannot automatically convert an unjustified position into a substantially justified one simply by settling the lawsuit. Id. Instead, the court must assess the Government's position in the full course of the litigation. Id.

 The Secretary's position for most of this litigation was the one pleaded in her answer -- that her decision was correct and in accordance with the applicable law and regulations. I trust that before filing its answer, the Government reviewed the administrative record to make certain that the Secretary's determination was indeed in accordance with the applicable law. The Government certainly had ample opportunity to conduct such a review -- it waited almost six months to file its answer. After a review of the record, it should have been apparent to the Government that the Secretary's decision was unsupportable because the ALJ had clearly applied the wrong standard and had acted contrary to substantial evidence in deciding that Tavarez was not disabled.

 Regulations promulgated by the Secretary provide categorical definitions for some disabilities. Under 20 C.F.R. § 416.920(d), an individual is by definition disabled if he has an impairment that meets the duration requirement and that is listed in Appendix 1 to Subpart P. Section 10.02 of Appendix 1 lists as an impairment: "Hansen's disease ...

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