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COUP v. HECKLER

January 27, 1989

JACK E. COUP, Plaintiff
v.
MARGARET HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: WEBER

 This Social Security disability case comes back to us on remand from the Court of Appeals for recomputation of an appropriate attorneys fee award. Coup v. Heckler, 834 F.2d 313 (3d Cir. 1987). For the reasons stated we conclude that plaintiff is entitled to an EAJA award of $7,349.39 and an award of costs of $60. Also the claim of plaintiff's counsel for fees under Section 206 of the Social Security Act is mooted by the higher award under EAJA.

 PROCEDURAL HISTORY

 Plaintiff filed several applications with the Social Security Administration for disability benefits. At some point he retained the services of his present counsel. Plaintiff's application was denied at all administrative levels, but on appeal to this court we concluded that the Secretary's decision was not supported by substantial evidence. We reversed the decision of the Secretary and awarded benefits to plaintiff. Coup v. Heckler, slip opinion (March 4, 1986).

 Plaintiff then filed a petition for an award of attorneys fees under both the Equal Access to Justice Act (EAJA), 28 USC § 2412, and the Social Security Act, 42 USC § 406. Plaintiff later amended his petition to include additional hours.

 Plaintiff's counsel listed a total of 19.6 hours expended in litigating the case before the District Court. We did not consider this amount of time to be unreasonable.

 Plaintiff's counsel sought payment under the EAJA for the 19.6 hours at the statutory rate, which counsel indicated at the time was approximately $ 90/hr., for a total of $1,764, Under § 206 of the Social Security Act, plaintiff's counsel sought an award of $6,433, representing 25% of plaintiff's past due benefits. This percentage is the maximum permitted under the Act, and the amount agreed upon in plaintiff's contingent fee agreement with his counsel. *fn1"

 In two separate Memorandum Opinions dated March 11, 1987 we denied plaintiff's EAJA request, but awarded fees under the Social Security Act. Rather than award counsel 25% of past due benefits as requested, we awarded fees on an hourly basis. We accepted counsel's 19.6 hours as reasonable but imposed an hourly rate of $ 75 (the EAJA base rate) for a total award of $ 1,470. It is important to note in this respect that counsel will also receive payment for his services at the administrative level, but that award is to be computed by the Secretary. See, Guido v. Schweiker, 775 F.2d 107 (3d Cir. 1985).

 On appeal the Circuit reversed our decision on the EAJA application, and found plaintiff entitled to attorneys fees from the government under the EAJA. The matter was remanded to us for computation of the amount of the award.

 The Circuit also vacated our award of fees under § 206 of the Social Security Act. The Court disapproved of our use of the $ 75 per hour rate and remanded for recomputation in accord with its Opinion and Order.

 On remand plaintiff filed a supplemental fee petition, seeking an additional award for time expended in prosecuting the appeal. The government has again filed objections to certain aspects of the petition.

 ANALYSIS

 1) EAJA Award

 On appeal the Circuit reversed our decision on the EAJA application. In essence equating the "substantial evidence" standard of review of the Secretary's final decision on disability with the "substantial justification" standard for an EAJA award, the Court held that absent extraordinary circumstances, reversal of the Secretary for lack of substantial evidence required an award of attorneys fees under the EAJA. Coup, 834 F.2d at 319; Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir. 1987). Because virtually all Social Security appeals are determined on a substantial evidence standard, almost every reversal of the Secretary will result in an EAJA award. In fact an attorney's failure to file an EAJA request may now be obvious malpractice because otherwise the client would be given credit against his fee liability for any amount the government is required to pay under the EAJA.

 Prior to the appeal plaintiff submitted an itemized list of time expended before the District Court totalling 19.6 hours. Of that time, a stunning 6.7 hours were attributable to the fee petition, more than half the time actually spent in obtaining benefits for plaintiff. On remand from the Circuit plaintiff submitted a supplemental petition listing 70 hours spent on appeal. Of course 2 of the 3 issues on appeal concerned the award of attorneys fees and plaintiff's counsel's time records do not distinguish between time spent on the substantive issue and time spent on fees.

 The question is whether under EAJA we should award fees for time spent pursuing the award of fees. On appeal the Circuit made clear that fees for such time could not be awarded under § 206 of the Social Security Act, but it ...


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