Anton L. Hendricks v. Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant

847 F.2d 1255, 1988 U.S. App. LEXIS 7410, 1988 WL 54527

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 25, 1988
• Docket: 87-1285
• Status: Published

Opinions

RIPPLE, Circuit Judge.

Anton Hendricks appeals from the judgment of the district court denying his petition for attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). We affirm the judgment of the district court.

I

Facts

We need not review the specifics of Mr. Hendricks’ underlying case; a brief restatement of the procedural posture will suffice. Mr. Hendricks applied for disability benefits and supplemental security income benefits in December 1980 and June 1981. After an initial denial of benefits, an administrative law judge (ALJ) granted Mr. Hendricks’ claim on February 25,1982, retroactive to May 1980. In January 1983, however, Mr. Hendricks received a notice from the Secretary of Health and Human Services (Secretary). This notice informed him that more current medical evidence showed that he was capable of performing substantial gainful activity and that he could not be considered disabled. The Secretary did not allege, however, that Mr. Hendricks’ medical condition had improved. The Secretary terminated Mr. Hendricks’ benefits, effective March 1983. Mr. Hendricks challenged the Secretary’s action revoking his benefits. In a decision dated June 28, 1983, an AU rejected Mr. Hendricks’ contention. The Appeals Council then denied review of the AU’s decision. That decision therefore became the final action of the Secretary.

On September 23, 1983, Mr. Hendricks sought review of the Secretary’s decision in district court. While his case was pending before that court, the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (Act or Reform Act) was enacted. The Reform Act mandated that all actions seeking judicial review of termination decisions relating to “medical improvement” pending on or before September 19,1984, should be remanded to the Secretary for reconsideration in accordance with the new standards set forth in the Act. Pursuant to this requirement, a magistrate remanded Mr. Hendricks’ claim to the Secretary. On review, the Secretary, applying the new standards, determined that Mr. Hendricks’ disability benefits should be reinstated.

Mr. Hendricks then timely filed a petition for attorneys’ fees pursuant to the EAJA. He claimed that he had been a prevailing party in his litigation with the Secretary. The district court denied this petition for two reasons. First, the court found that “it would be a strange construction of the Equal Access to Justice Act to hold that a remand pursuant to legislative mandate could be said to make the plaintiff the ‘prevailing party’ as required by the EAJA.” Hendricks v. Bowen, No. 83-C-851-C, order at 2 (W.D.Wis. Dec. 22, 1986) [available on WESTLAW, 1986 WL 15782]. Second, the court noted that, under the EAJA, attorneys’ fees are awarded only when the government’s position was not substantially justified. Because the intervening legislative action precluded its consideration of the merits of the underlying case, the court concluded that it could not determine whether the government’s position failed under this standard. Nor could it determine, added the court, whether other circumstances existed which would make an award of attorneys’ fees unjust. Id. This appeal followed.¹

II

Discussion

The EAJA provides in pertinent part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), 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 unjust.

28 U.S.C. § 2412(d)(1)(A). Under the statute, Mr. Hendricks is entitled to attorneys’ fees if three prerequisites are met. First, Mr. Hendricks must be a prevailing party. Second, the position of the government must not have been substantially justified. Third, Mr. Hendricks’ case must not involve special circumstances that would make an award of fees unjust. See Gamber v. Bowen, 823 F.2d 242, 244 (8th Cir.1987).

A. Substantially Justified

We first consider whether the position of the Secretary in the underlying litigation was substantially justified. Mr. Hendricks argues that the Secretary’s position before the district court was not justified because of this court’s decision in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). In Cassiday, we held that the Secretary normally could not terminate disability benefits absent a finding that the claimant had “ ‘improved to the point of being able to engage in substantial gainful activity.’ ” Id. at 747 (quoting Miranda v. Secretary of Health, Educ. and Welfare, 514 F.2d 996, 998 (1st Cir.1975)). However, we also said that the Secretary might be justified in terminating benefits when the “ ‘claimant’s condition is not as serious as was at first supposed.’” Id. (quoting Miranda, 514 F.2d at 998). Mr. Hendricks contends that Cassiday established a standard comparable to the standard adopted by Congress in the Reform Act and that, therefore, the Secretary was not substantially justified in contesting Mr. Hendricks’ continued right to benefits.

Contrary to the assertion of Mr. Hendricks, the decision in Cassiday does not establish that the government was not substantially justified in revoking Mr. Hendricks’ benefits. Cassiday did not preclude the possibility of the Secretary’s revoking benefits even when there was no “medical improvement.” Under Cassiday, the Secretary also could revoke disability benefits when later investigation revealed that the original grant of those benefits was mistaken. Indeed, between the time when Cassiday was decided and Congress passed the Reform Act, several district courts in this circuit affirmed decisions by the Secretary to terminate benefits even though no medical improvement had been shown. Although those decisions later were reversed by this court, see Switzer v. Heckler, 742 F.2d 382 (7th Cir.1984) and Soper v. Heckler, 754 F.2d 222 (7th Cir.1985), the analy-ses of the district courts nonetheless evidence a common understanding, at the time that Mr. Hendricks’ litigation was pending before the district court,² that Cassiday did not unequivocally require the Secretary to prove “medical improvement” in order to terminate benefits.

In light of the limited holding in Cassi-day, a strong argument can be made that the Secretary’s position in this litigation was substantially justified. The record contains a significant amount of evidence suggesting that Mr. Hendricks could engage in “substantial gainful activity.” See 42 U.S.C. § 423(d)(1)(A). However, we need not ground our decision solely on this point because, as we discuss below, Mr. Hendricks cannot be deemed a prevailing party for purposes of the EAJA.

B. Prevailing Party

To be considered a prevailing party, it is not enough that Mr. Hendricks’ suit was remanded to the Secretary. Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir.1988). Mr. Hendricks also must show that he eventually resecured his disability benefits and that his lawsuit played a “provocative role” in securing that result. Lovell v. City of Kankakee, 783 F.2d 95, 97 (7th Cir.1986).³ In Lovell, we said that “ ‘plaintiffs’ lawsuit must be causally linked to the achievement of the relief obtained.’ ” Id. at 96 (quoting Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981)). Other circuits also have said that the plaintiff must establish that his lawsuit was a “catalyst” for the favorable disposition. See, e.g., Martin v. Heckler, 773 F.2d 1145, 1149 (11th Cir.1985) (en banc); Williams v. Miller, 620 F.2d 199, 202 (8th Cir.1980) (per curiam).

The issue presented in this case, whether a disability claimant can be deemed a prevailing party when the Secretary has reinstated benefits pursuant to reconsideration mandated by the Reform Act, was squarely addressed recently in Truax v. Bowen, 842 F.2d 995 (8th Cir.1988) (per curiam). In Truax, the court concluded that an individual disability claimant could not be deemed the catalyst or the cause of Congress’ decision to enact the Reform Act. The court said:

[E]ven granting that Congress’ enactment of the Reform Act was partly a result of the thousands of suits filed by terminated claimants against the Secretary, see Stone v. Heckler, 658 F.Supp. 670, 674-75 (S.D.Ill.1987), we believe that the causal link between Truax’s individual lawsuit and Congress’s action is too tenuous to satisfy the catalyst test. Moreover, although it is true that had Truax not filed his lawsuit he would not have obtained relief, we fail to see how this “but for” argument establishes a causal connection between the litigation and the Secretary’s remedial action.

Id. at 997. We agree with that analysis.⁴ The nexus between Congress’ action and Mr. Hendricks’ suit is too attenuated to conclude that the latter played a “provocative role” in causing the former. The Secretary did not reinstate Mr. Hendricks’ benefits because the Secretary wanted to compromise a dispute or because he became convinced that his prior position was unprincipled. Rather, the Secretary reinstated Mr. Hendricks’ benefits because Congress mandated reconsideration of all such currently pending claims under a newly enacted standard.⁵ Admittedly, as the court noted in Truax, claimants like Mr. Hendricks would not have been entitled to disability benefits if they had not pursued fully their legal remedies. But only in a hypertechnical sense does this make Mr. Hendricks’ lawsuit the “cause” of his victory. The proximate cause of his victory was the congressional enactment of a standard under which he was entitled to relief. We simply do not believe that Congress envisioned the “prevailing party” language in the EAJA to be so broad as to encompass the instant circumstance.

Our review of the legislative history of the Reform Act also makes us reluctant to infer that Congress intended claimants like Mr. Hendricks to receive attorneys’ fees. Congress was on full notice that there were thousands of outstanding claimants whose claims would be remanded and reconsidered by operation of the Reform Act. However, nothing in the Reform Act expresses a desire or expectation that those claimants would receive attorneys’ fees if their benefits were reinstated. The legislative history appears silent on the subject, and the projections of the expected costs of the Reform Act, as prepared by the Congressional Budget Office and the Office of the Actuary, Social Security Administration, do not reflect any anticipation that the government would be obligated to pay attorneys’ fees as a result of the Act’s passage. See H.R.Rep. No. 618, 98th Cong., 2d Sess. 38-44, reprinted in 1984 U.S. Code Cong. & Admin.News 3038, 3074-80; S.Rep. No. 466, 98th Cong., 2d Sess. 34-42 (1984). In our view, this lack of Congressional attention to the enormous financial impact of awarding attorneys’ fees is evidence that Congress did not intend the EAJA to apply.

Conclusion

Accordingly, the decision of the district court is affirmed.

Affirmed.

1 . The district judge that rejected Mr. Hendricks’ claim in this case recently reached the opposite result in a different case, commenting that her decision here had been "wrong.” Whiting v. Bowen, 671 F.Supp. 1219, 1222 (W.D.Wis.1987).

2 . This court reversed the district court in Swit-zer on August 24, 1984. Mr. Hendricks filed his action in September 1983, and the parties filed their motions for summary judgment in June 1984. Thus, the Secretary’s litigating posture in this case was fully articulated before Switzer was decided.

3 . Lovell involved the definition of a prevailing party under 42 U.S.C. § 1988. Regardless of the statutory basis, the standards for defining a prevailing party are the same. Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983); see also Truax v. Bowen, 842 F.2d 995, 997 n. 2 (8th Cir.1988) (per curiam).

4 . The result and analysis in Truax had been adopted previously by several district courts in this circuit. See, e.g., Vokurka v. Bowen, No. 85-C-4554 (N.D.Ill. Aug. 5, 1987) [available on WESTLAW, 1987 WL 15397]; Kawohl v. Bowen, No. 84-C-1628 (N.D.Ill. May 15,1987) [available on WESTLAW, 1987 WL 11368]; Bogacz v. Bowen, No. 84-C-2284 (N.D.Ill. May 2, 1987) [available on WESTLAW, 1987 WL 11434]; Mathus v. Heckler, 661 F.Supp. 241 (N.D.Ill.1987); Krause v. Heckler, No. 84-C-3322 (N.D.Ill. Jan. 9, 1987). Contra Whiting v. Bowen, 671 F.Supp. 1219 (W.D.Wis.1987).

5 .The legislative history of the Reform Act suggests that the primary purpose of the Reform Act was to ensure that disability claimants were treated uniformly across the United States. See H.R.Rep. No. 618, 98th Cong., 2d Sess. 9-13, reprinted in 1984 U.S.Code Cong. & Admin.News 3038, 3046-50; S.Rep. No. 466, 98th Cong., 2d Sess. 9 (1984). Prior to the Reform Act, there was no statutory standard for determining whether to discontinue benefits; accordingly, diverse standards for termination had emerged in courts across the country. Congress was understandably intolerant of such a result. Id.