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SOTO-VALENTIN v. HECKLER

September 27, 1985

ADELINA SOTO-VALENTIN, Plaintiff, against MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 In this case of first impression, this Court is squarely faced with the following question: in an action brought pursuant to the Social Security Act, in which the plaintiff successfully establishes entitlement to both Title II disability insurance benefits ("DIB") and Title XVI Supplemental Security Income benefits ("SSI"), and the government's position is not substantially justified, can the plaintiff obtain an award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA") which exceeds 25% of the plaintiff's back DIB benefits? *fn1" I find that this question should be answered in the affirmative.

 By Memorandum and Order dated October 19, 1984, I reversed the Secretary's decision terminating plaintiff's Title II DIB and Title XVI SSI benefits. Defendant thereafter moved pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for an order vacating the October 19 Order and remanding this action pursuant to Section 2(d)(2) of the Social Security Disability Benefits Reform Act of 1984 ("SSDBRA"). On December 7, 1984, I denied the Government's motion from the bench. Since that time, the Secretary has awarded plaintiff past due DIB benefits of $3689.00, but has withheld 25% of that amount, or $922.25, pursuant to 42 U.S.C. § 406(b)(1). The Court has not been apprised of the amount of plaintiff's past due SSI award.

 Plaintiff's counsel *fn2" now seeks an award of attorneys' fees pursuant to the EAJA, or, alternatively, pursuant to 42 U.S.C. § 406(b). For the reasons set forth below, plaintiff is awarded, pursuant to the EAJA, counsel fees in the amount of $1481.75 and $23.40 in costs, or a total of $1505.15. In addition, plaintiff's counsel is awarded $922.25 pursuant to 42 U.S.C. § 406(b).

 Discussion

 A. Plaintiff's Entitlement to an EAJA Award

 Under the EAJA, a party who "prevails" in a civil action against the United States or any agency or official acting in his official capacity may be awarded costs and "reasonable fees and expenses of attorneys." *fn3" It is well settled that the EAJA applies to claims brought under the Social Security Act. See, e.g., Ocasio v. Schweiker, 540 F. Supp. 1320 (S.D.N.Y. 1982).

 It is also undisputed that the plaintiff here is a "prevailing party" within the meaning of the Act. However, the plaintiff may recover an award under the EAJA only if the government was not "substantially justified" in its position in this litigation. Substantial justification refers to the position taken by the government in the federal court litigation, and not to the underlying position of the administrative agency. Boudin v. Thomas, 732 F.2d 1107, 1116 (2d Cir. 1984). Essentially, the Government's position must be one of "reasonableness." Environmental Defense Fund v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983). Furthermore, where the law is unclear at the time of the government's memorandum, the government's position is not unreasonable. Boudin v. Thomas, supra, 732 F.2d at 1116. *fn4"

 The merits of this case called into play at least two aspects of the law which changed significantly during the pendency of this action. Of more relevance to this motion is the change in the standard to be applied in cases involving the termination of benefits. *fn5" At the administrative level, the Secretary terminated plaintiff's benefits based on a "current disability" standard. On February 27, 1984, I issued a decision in another action, which held the "medical improvement" standard *fn6" to be applicable in a benefits termination case. Lanzissero v. Heckler, supra note 6. *fn7" The government filed a memorandum in support of its motion for judgment on the pleadings in this case on May 2, 1984. Shortly thereafter, the Second Circuit addressed this issue and also determined that the "medical improvement" standard should be applied in termination cases. DeLeon v. Secretary, supra note 7. The parties' cross-motions for judgment on the pleadings were not argued before me until July 27, 1984. The medical improvement standard was codified in the SSDBRA in October 1984.

 In view of the above, it is clear that the law in this Circuit as to the standard applicable in termination cases was settled by the time that oral argument on the merits of the action was heard. Thus, based on the termination issue alone, the government's position in this litigation was not substantially justified at the time when that motion was argued. See Boudin v. Thomas, supra, 732 F.2d at 1116. Therefore, plaintiff is entitled to recover costs and attorneys' fees from the government under the EAJA, which arise from the prosecution of the merits of her claim. A plaintiff who is entitled to receive an award under the EAJA is also entitled to be awarded fees for time spent in connection with a fee application. Tripodi v. Heckler, supra note 2, 100 F.R.D. at 740.

 With respect to plaintiff's application for fees incurred in connection with the Rule 60 motion, however, I find that an EAJA award is not appropriate, as the government's position in that portion of this litigation was substantially justified. The SSDBRA's enactment ten days prior to the issuance of the October 9 Order prompted counsel for the government to file that motion. Although this Court was convinced that plaintiff should prevail on that motion, the government's position with respect thereto was certainly grounded on a good faith interpretation of the law which has, in fact, been followed by some courts. See e.g., Morneau v. Secretary of Health and Human Services, No. 84-1205 (1st Cir. Dec. 10, 1984); Schwartz v. Secretary of Health and Human Services, No. 83-1015 (W.D.N.Y. Dec. 20, 1984). Thus, plaintiff should not receive an EAJA award for the time spent on that motion. This result is consistent with an analogous decision reached by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), where the Court held that "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988." Id. at 435. Although that case was concerned with an award of attorney's fees under the Civil Rights Act, its reasoning applies with equal force here.

 B. Limitations on Amount of an EAJA Award

 The only remaining question presented is the amount of the award of fees and costs under the EAJA. Plaintiff's counsel seeks to recover a total of $2268, or a fee of $83 per hour for 27 hours of work, plus $23.40 in ...


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