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December 9, 1991


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


Plaintiff moves for an award of attorney's fees from the government pursuant to the Equal Access to Justice Act ("the EAJA"), 28 U.S.C. § 2412. Because the court finds that plaintiff was the prevailing party within the meaning of the statute, and that the government has not met its burden of establishing that its position was substantially justified, plaintiff's motion is granted.


Plaintiff applied for disability benefits from defendant in November 1986. In December 1987, a Department of Health and Human Services Administrative Law Judge (ALJ) denied her application. Plaintiff requested review of her case by the Department of Health and Human Services Appeals Council; in March, the Appeals Council remanded the case back to the ALJ. The ALJ issued a second opinion denying benefits to plaintiff in September 1988. On February 2, 1989, the Appeals Council again overturned the ALJ's decision and remanded the case. After a hearing, on July 24, 1989, the ALJ again denied plaintiff's request for benefits, this time for a reason inconsistent with his previous two decisions. Plaintiff again appealed the decision.

On August 16, 1989, while her request for review by the Appeals Council was pending, plaintiff filed an action in this court, seeking interim benefits and an order enjoining the ALJ from further participation in her case. On October 2, 1989 the Appeals Council granted plaintiff's request for benefits on the basis of her disability. Three days later the parties stipulated to a dismissal of the action.


Plaintiff seeks attorney fees under two provisions of the EAJA, §§ 2412(b) and (d). The two sections apply somewhat different standards, and employ different methods of computing the amount of any fee award.

I.  Fees Under Section 2412(d)

Section 2412(d)(1)(A) provides 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, unless the court finds that the position
  of the United States was substantially justified
  or that special circumstances make an award
A.  Prevailing Party

The first requirement of this section is that the party seeking the fee award be the "prevailing party." Courts have recognized two ways that litigants can achieve prevailing party status within the meaning of the EAJA. The first, and most common, path to prevailing party status requires a party to succeed on a significant issue in litigation which achieves some of the benefit sought in bringing suit. Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). The second path involves what courts have termed the "catalyst test." Guglietti v. Secretary of Health and Human Services, 900 F.2d 397, 401 (1st Cir. 1990). Under this test, a plaintiff may recover attorney's fees under the EAJA "if the plaintiff's lawsuit was a catalytic, necessary or substantial factor in attaining the relief." Vitale v. Secretary of Health and Human Services, 673 F. Supp. 1171, 1175 (N.D.N.Y. 1987) (quoting Gerena-Valentin v. Koch, 739 F.2d 755, 758-59 (2d Cir. 1984)). Applying these tests to the facts of this case, the court finds that plaintiff is a prevailing party under both.

1. Merits Test

Defendant argues that plaintiff was not a prevailing party within the meaning of the statute because plaintiff's motion for interim relief was never granted, and "although plaintiff ultimately received disability benefits, it can not seriously be contended that she prevailed on her claim." Def. Mem. in Opp. at 6. Defendant's argument rests on the fact that the action plaintiff commenced in this court was not an action based on a final decision by the Secretary, but rather was an interlocutory action seeking relief pending defendant's final decision. As the Second Circuit has recently held, however, "there is nothing in the EAJA that requires that a party prevail in a civil action reviewing a final agency determination. There being no such requirement, this cannot be the basis for finding that [plaintiff] was not a prevailing party." Green v. Bowen, 877 F.2d 204, 206 (2d Cir. 1989). While Green involved a mandamus action in which the plaintiff sought to compel the Secretary to reopen his claim after an adverse ruling and not a motion for interim benefits, the distinction between Green and this case is not dispositive. In both cases plaintiff filed an action that did not seek review of a final agency determination, and in both cases plaintiff ultimately received disability benefits. "Regardless of the wording of the complaint or the actual relief sought in the district court, generally speaking, a social security claimant prevails when it is determined that [s]he is entitled to benefits." McGill v. Secretary of Health and Human Services, 712 F.2d 28, 31-32 (2d Cir. 1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). It is true that plaintiff in this case sought interim benefits, but plaintiff also sought to have ALJ Jacobs, whom she viewed as responsible for the excessive delay in her case, removed from the case, in the hope that his removal would speed the resolution of her claim. In other words, plaintiff's efforts to obtain disability benefits and her efforts to obtain interim benefits through this ...

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