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May 9, 1983

PATRICIA R. HARRIS, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: SHAPIRO


 Before the court is an application for attorney's fees from counsel for plaintiff in an action in which plaintiff successfully challenged the decisions of the Secretary of Health, Education and Welfare (the "Secretary") denying her claim for disability benefits and supplemental income under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq.

 The fee petition is brought under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (hereinafter "EAJA" or the "Act"). *fn1" Section 2412(d)(1)(A) reads:

 The government does not contest that plaintiff was a prevailing party for purposes of the EAJA. However, it opposes counsel's application on the grounds that: (1) the EAJA does not apply to claims filed pursuant to Title II of the Act; (2) an award of fees for services performed prior to the effective date of the EAJA is prohibited; (3) an award of fees under the EAJA is precluded for services rendered at an administrative proceeding before the Social Security Administration; and (4) if the EAJA does apply (a) the position of the Secretary was substantially justified and (b) special circumstances exist which make an award of attorney's fees unjust.

 The government argues that there is no recourse to the EAJA because the Social Security Act itself provides explicitly for attorneys' fees, at least with respect to plaintiff's Title II claim to which 42 U.S.C. § 406(b)(1) explicitly applies:

Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

 The government contends that the last sentence of § 406(b)(1) establishes it is an exclusive provision for attorney's fees. It maintains that an award of fees pursuant to the EAJA would contravene not only § 406 of the Social Security Act but § 206 of the EAJA (P.L. 96-481) which renders the EAJA conditional upon other provisions of federal law:

Nothing in section 2412(d) . . . alters, modifies, repeals, invalidates, or supersedes any other provision of Federal law which authorizes an award of such fees and other expenses to any party other than the United States that prevails in any civil action brought by or against the United States. (Quoted at Note to 28 U.S.C. § 2412).

 In effect, the government argues that this provision read in conjunction with § 406(b)(1) prevents utilization of the EAJA to obtain a fee award against the government for Social Security claims.

 However, § 406(b)(1) and the EAJA differ in purpose. Section 406(b)(1) of the Social Security Act imposes a limitation on attorney's fees from funds which would otherwise have gone to the claimant in the form of benefits. The prohibition against "other" fees was necessary to enforce a 25% limitation on the fees which lawyers could charge their clients and deduct from the recovery the client would otherwise obtain. See, S.Rep. No. 404, 89th Cong. 1st Sess. reprinted in 1965 U.S. Code Cong. and Admin. News 1943, 2062; McDonald v. Schweiker, 551 F. Supp. 327 (N.D.Ind. 1982).

 The EAJA is a fee shifting statute and if attorneys' fees are awarded, they are in addition to the amount of the judgment not in diminution of the amount otherwise recovered. It is designed to ensure that individuals are not deterred from "seeking review of or defending against unreasonable governmental actions because of the expense involved in securing the vindication of their rights." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 18, reprinted in 1980 U.S. Code Cong. & Ad. News 4953, 4984. Since the EAJA provides for additional fees to be assessed against the government, § 206 of the EAJA is intended to prevent the Act from being applied to federal statutes which already authorize fee awards against the federal government. It does not conflict with § 406(b)(1) of the Social Security Act which limits the amount by which the claimant's award may be reduced.

 In National Resources Defense Council v. EPA, 703 F.2d 700 (3d Cir. March 23, 1983) (" NRDC v. EPA "), the Court of Appeals held that the EAJA applied to the Clean Water Act even though § 505(d) of that Act provides for an award of counsel fees for civil actions brought in district court pursuant to § 505(a), 33 U.S.C. § 1365 (1976). The petition for review in the Court of Appeals was pursuant to § 509(b)(1); the Act is silent with respect to counsel ...

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