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PAGE v. HECKLER

January 28, 1985

HELEN M. PAGE, on behalf of herself and all others similarly situated, Plaintiff
v.
Richard E. Schweiker, Secretary of Health and Human Services, Defendant


William W. Caldwell, United States District Judge.


The opinion of the court was delivered by: CALDWELL

WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Before the court is plaintiff's counsel's motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). *fn1" For the reasons discussed hereinafter, we have determined that a fee award is appropriate. *fn2"

 II. Background

 Plaintiff in the current matter, which challenged recoupment procedures utilized in Title XVI SSI cases, has been represented by counsel from Central Pennsylvania Legal Services from the time this action was filed on October 27, 1982. On September 2, 1983, we filed a memorandum and order in which we struck down that two step procedure required of purportedly overpaid SSI beneficiaries before they could have a prerecoupment hearing. Our order directed that the Secretary implement procedures consistent with our conclusions. Most of the filings in this case subsequent to our September 2, 1983, decision have related to implementation matters, particularly cross-program recovery of overpayments. See n.2 supra.

 III. The "Substantial Justification" Issue

 The attorney fee provision of the EAJA, 28 U.S.C. § 2412(d)(1)(A) mandates a fee award to a qualified "prevailing party" such as plaintiff "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." See Tressler v. Heckler, 748 F.2d 146 (3d Cir. 1984); Natural Resources Defense Council v. United States Environmental Protection Agency, 703 F.2d 700 (3d Cir. 1983). Under 28 U.S.C. § 2412(d)(2)(A)(ii) attorney fees may not exceed an hourly rate of $ 75.00 per hour unless the court determines that higher amounts are warranted. In order that counsel fees be properly awarded under the EAJA, two conditions must be satisfied. First, one must be a "prevailing party." Second, the court must examine the "substantial justification" issue and find that the government's position was not substantially justified or that under the circumstances an award of attorney fees is unjust. In the present matter, no attack has occurred on plaintiff's status as a prevailing party. Accordingly, the government having conceded that the first prong of the EAJA test has been met, we need examine only the "substantial justification" issue.

 We have examined and discussed the "substantial justification" issue at length several times, most notably in our fee decisions in Renshaw v. Heckler, 580 F. Supp. 836 (M.D. Pa. 1984) and Kauffman v. Schweiker, 559 F. Supp. 372 (M.D. Pa. 1983). The Kauffman case also upheld the propriety of EAJA fee awards to legal service organization counsel, an issue that appears to have been put to rest by numerous cases that have since reached the same conclusion. Reviewing the "substantial justification" issue in Kauffman, we noted,

 
Guidance for determining whether the position of the government was "substantially justified" is found in the legislative history of the EAJA as well as in case law. One of the most thorough analyses is found in Berman v. Schweiker, 531 F. Supp. 1149 (N.D. Ill. 1982) wherein attorney fees for plaintiff's privately-retained counsel were approved. In examining the standard for an attorney fee award, the court noted that when a non-governmental party prevails, the government has the burden of demonstrating that its position was "substantially justified" even though it lost the case, Id. at 1153, and that "the standard falls in between the common law 'bad faith' exception and an automatic award of attorney's fees to prevailing parties." Id. at 1154. The House Report described the test as "essentially one of reasonableness" and cautions courts not to conclude that the government's position was not "substantially justified" simply because the government was not the prevailing party or because it cannot show that "its decision to litigate was based on a substantial probability of prevailing." H.Rep. No. 96-1418, supra, at 4989-90. See also S.Rep. No. 96-253, supra, at 7.

 Id. at 375. *fn3"

 This standard has been reiterated with approval in the more recent Tressler case, supra at 149-150, in which the court reviewed the three part substantial justification test set forth in Dougherty v. Lehman, 711 F.2d 555 (3d Cir. 1983). The Dougherty court summarized the government's burden to show that its position was "substantially justified," i.e. "had a reasonable basis in law and fact," as requiring that the government must:

 
First, show that there is a reasonable basis in truth for the facts alleged in the pleadings. If no such basis for the government's factual allegations exist, then the government's position may well be held not to be "substantially justified."
 
Second, the government must show that there exists a reasonable basis in law for the theory which it propounds. This is not to say that the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed. See ...

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