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LONNING v. SCHWEIKER

August 4, 1983

SUSAN F. LONNING
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services


James T. Giles, United States District Judge.


The opinion of the court was delivered by: GILES

JAMES T. GILES, UNITED STATES DISTRICT JUDGE

 By order dated March 14, 1983, I adopted the Report and Recommendation of Magistrate Edwin E. Naythons, reinstating plaintiff's Supplemental Security Income (SSI) disability benefits. Plaintiff's counsel now seeks attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. V 1981). For the reasons set forth below, the fee petition will be granted.

 I. BACKGROUND

 Susan F. Lonning ("Lonning") is a twenty-seven year old controlled epileptic who is mentally retarded. In September of 1976, she was deemed disabled within the meaning of Title XVI of the Social Security Act and began receiving SSI benefits. In June of 1980, the Social Security Administration's Office of Disability Operations notified Lonning that they determined that her disability had ceased as of May of that year. Her benefits were immediately terminated. A hearing was requested and the Administrative Law Judge (ALJ) agreed that Lonning was no longer disabled. Review was denied by the Appeals Council. Thereafter, Lonning brought suit. Upon reviewing Magistrate Naythons' report and recommendation, this court found insufficient evidence of improvement to warrant the termination of benefits.

 Plaintiff's counsel, Michael J. Campbell, Esquire, ("Campbell") asserts entitlement to $ 1,012.50 plus a cost of living increase under the EAJA. In support of his fee petition, Campbell argues that the government's position was not "substantially justified." The government opposes an award of attorney's fees, contending that the EAJA should not be applied to claims for SSI benefits under Title XVI. In the alternative, the government argues that they were substantially justified in terminating Lonning's benefits.

 II. DISCUSSION

 A. The EAJA and the Social Security Act

 The EAJA is a limited statutory departure from the traditional "American Rule," which places upon each party the burden of paying their own attorney's fees. It allows a prevailing private party to recover fees against the government when the latter's position was not "substantially justified." The statute provides:

 
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) 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.

 Pub. L. No. 96-481, 94 Stat. 2327, Title II § 204(a), 28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981). The purpose of this experimental *fn1" statute was to "'remove an obstacle to contesting unreasonable governmental action through litigation' posed by the expense involved in securing the vindication of a party's rights in the courts." Dougherty v. Lehman, 711 F.2d 555 at 562 (3d Cir. 1983) (citing Goldhaber v. Foley, 698 F.2d 193, 195 (3d Cir. 1983)). The substantial justification element ensures that fees are only awarded where the United States' action was unreasonable.

 The government argues that the EAJA was not intended to and should not be applied to this kind of Social Security case. However, its reasoning is vague at best. The government concedes that the legislative history of the statute indicates that the United States should be liable when it is "a named party and represented in a civil action under the Social Security Act." Governments' Response to the Fee Petition at 3-4. (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S. Code Cong. & Ad. News at 4991). Noting that the United States is not a named party herein, the government questions whether Congress contemplated the statute to apply where an agency or official, rather than the United States, is named. The suggestion that the EAJA should not apply where an agency or official is the named party ignores the statutory language. The definitional section of the Act states that; "'United States' includes any agency and any official of the United States acting in his or her official capacity." 28 U.S.C. § 2412(d)(2)(C). Thus, by its own terms, the EAJA applies to suits brought by or against an agency or official. Moreover, it is unlikely that any case challenging the action of an administrative agency would be brought against the United States, rather than against the official or agency itself. To require the United States to be a named party before utilizing the EAJA would preclude its application in the very cases for which it was enacted.

 The government appears to argue that since there is no provision within the Social Security Act for an attorney's fee award in SSI cases, the EAJA should not be applied to these cases. This argument belies the government's position. The Third Circuit noted that Congress intended the EAJA "not to affect cases where fees already could be awarded, but instead to make fee awards possible in additional cases when section 2412(d)(1)(A)'s requirements are met." Natural Resources Defense Council v. United States Environmental Protection Agency, 703 F.2d 700 at 705. The court stated that "Congress intended the EAJA to expand the potential for fee awards under certain circumstances, not to freeze the absence of counsel fee provisions in existing statutes." Id. The legislative history of the statute states:

 
this section is not intended to replace or supercede any existing fee-shifting statutes such as the Freedom of Information Act, the Civil Rights Acts, and the Voting Rights Act in which Congress has indicated a specific intent to encourage vigorous enforcement, or to alter the standards or the case law governing those Acts. It is intended to apply only to cases ...

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