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
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.
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 ...