the court of appeals would require that district courts consider such petitions in the first instance.
As the Secretary points out, strong evidence that the court of appeals would give initial attention to fee requests is found in Rule 27 of the Third Circuit's Rules.
Rule 27 establishes a procedure by which prevailing parties can make their EAJA request directly to the appellate court. The Rule requires that fee petitions contain a detailed statement of the "nature and extent of services rendered," a declaration of time and expenses, and a statement of the position of the United States which the prevailing party claims was not substantially justified. 3d Cir. R. 27(2). It is thus apparent from the very text of the Rule that the court of appeals will itself be determining the appropriate fee in some cases before it.
Plaintiff contends, however, that Rule 27 should be interpreted as a mechanism for assessing fees in cases in which the appellate court reviews directly the merits of an administrative agency action. In such cases, plaintiff argues, there is no intervening action in the district court, and thus it would be inappropriate to "remand" a related fee request. Plaintiff contends that in cases where, as here, the merits were initially decided by the district court, the Third Circuit's practice has been to remand the entire fee petition to the district court to fix an award for both district court and appellate representation. See, e.g. Prandini v. National Tea Company, 585 F.2d 47, 54 (3d Cir. 1978).
The Secretary also argues that the court of appeals should initially consider plaintiff's appellate EAJA petition because the appellate court is in a superior position to determine the appropriateness and amount of an award of fees. In this regard, the Secretary reiterates that the EAJA mandates an award of fees only where the government's position was not "substantially justified."
Some support for the Secretary's latter argument is found in the Eighth Circuit's decision in Cornella v. Schweiker, 741 F.2d 170 (8th Cir. 1984). In Cornella, the court denied a petition for appellate attorney's fees in connection with a successful appeal of a district court's denial of an EAJA petition. See Cornella v. Schweiker, 728 F.2d 978 (8th Cir. 1984), rev'g Cornella v. Schweiker, 553 F. Supp. 240 (D.S.D. 1982). Although the court did not specifically address the appropriate forum for resolution of the petition, it is evident from the opinion that the appellate court -- indeed the same panel of judges -- considered the request in the first instance.
In my view, the appropriate court for resolution of an EAJA attorney's fees petition is the court before which the attorney performed the work sought to be recompensed. Although the court of appeals has, in other contexts, assigned to district courts the task of calculating the reasonable value of appellate representation, an award of fees under the EAJA reflects a judgment that the government's position was not substantially justified. For a district court to make such a determination, the district judge would often have to assess the merits of the government's arguments on appeal. This, in turn, would require a review of appellate briefs which are not generally made part of the district court file, and then an evaluation of those briefs in light of the court of appeals' opinion. Such a process would involve needless duplication of the court of appeals' consideration of the government's briefs, and it would require the district court to search the court of appeals' opinion for indicia of the appellate panel's evaluation of the position taken by government attorneys.
The case at bar well demonstrates the wisdom of appellate court treatment of EAJA petitions relating to work performed on appeal. Although unanimous in its judgment, the appellate panel that decided this case set forth its rationale in a majority and two concurring opinions. Whether the Secretary's appellate position was substantially justified in the view of the panel's opinions should be decided by the court of appeals. I am satisfied that this disposition of plaintiff's supplemental motion will not prejudice his rights: I am informed by counsel that plaintiff has submitted an EAJA petition to the court of appeals. Should the court of appeals decide that I should consider the petition in the first instance, the appellate court can simply refer that petition to this court.
In short, I find that plaintiff's original request for attorney's fees was reasonable, and I will approve it. I hold that plaintiff's EAJA petition for appellate representation should be addressed to the court of appeals. I will therefore dismiss as premature plaintiff's supplemental petition for fees and costs.
This 22nd day of May, 1985, it is ORDERED that:
1. Plaintiff's Motion for Attorney's Fees is GRANTED in the amount of $2,118.75.
2. Plaintiff's Supplemental Motion for Attorney's Fees and Costs is DISMISSED.