The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge
Before this Court is Plaintiff's Application for Attorney Fees
against the Commissioner of the Social Security Administration
("Commissioner") pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412(d)(1)(A).*fn1 Also before the Court is the Defendant's
Motion to Deny Plaintiff's Petition. For the reasons that follow,
Defendant's Motion will be granted and Plaintiff's Application will be
Plaintiff filed applications for Supplemental Security Income ("SSI")
benefits on February 22, 1999 and protectively on December 20, 1999,
alleging disability due to a lower back
injury and pain, depression and hypertension. The Social Security
Administration ("SSA") denied Plaintiff's claims for benefits, as well as
his request for reconsideration of the later application. After the
denial of reconsideration, Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"). Plaintiff received a hearing before ALJ
Diane Moskal. Following the hearing, on June 25, 2001, ALJ Moskal found
that Plaintiff was not entitled to receive benefits.
On August 30, 2001, Plaintiff initiated the instant action seeking
review of the Commissioner's decision. In response to Plaintiff's
Complaint, the Commissioner filed a Motion to Remand with respect to
Plaintiff's SSI claim based upon his application of December 20, 1999.
The Commissioner sought remand for the purpose of updating the medical
record. On January 9, 2002, the Court granted the Commissioner's Motion
to Remand, and remanded the case to the Commissioner for further
On remand, the case was once again assigned to ALJ Moskal, who held a
hearing on May 16, 2002. By a June 28, 2002 decision, ALJ Moskal found
that Plaintiff was not entitled to receive benefits. Plaintiff appealed
ALJ Moskal's decision to the Social Security Administration Appeals
Council ("Appeals Council"). In a decision dated June 14, 2003, the
Appeals Council upheld
ALJ Moskal's decision and denied Plaintiff's appeal. While awaiting
action by the Appeals Council, Michael Patrick Boyle, Esq. was informed
of Plaintiff's death on April 17, 2003. On September 30, 2003, the
Commissioner filed a Motion to Dismiss the instant action because
Plaintiff left no survivor eligible to collect any SSI benefits to which
he may have been entitled. Plaintiff's counsel did not oppose Defendant's
Motion. On October 21, 2003, the Court entered an Order dismissing the
case. On November 21, 2003, Plaintiff's counsel filed the instant
Application for Attorney Fees under the EAJA. Defendant filed her Motion
to Deny Plaintiff's Petition on January 22, 2004.
Plaintiff's Application for Attorney Fees is based upon the EAJA,
28 U.S.C. § 2412(d)(1)(A). The EAJA provides, in pertinent part, as
a court shall award to a prevailing
party other than the United States fees and
other expenses . . . incurred by that party in
any civil action . . . brought by or against
the United States . . . unless the court finds
that the position of the United States was
substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A)(emphasis added). "Thus, as a
threshold matter, to obtain attorney's fees under this provision the
litigant must establish that they are the prevailing party." Dunn v.
Sullivan, 794 F. Supp. 133, 135 (D. Del. 1992). "Only if the Court
determines the party seeking fees is the prevailing party must the Court
go on to determine whether the position taken by the government was
substantially justified." Id. Plaintiff's counsel does not
address the threshold requirement of prevailing party status, but,
instead, argues that he is entitled to attorney's fees because "Plaintiff
had substantial grounds for filing an appeal to this court and would have
prevailed on the merits had he lived." (Pl.'s Mem. Law at 3). Defendant
argues that Plaintiff is not entitled to attorney fees because he was not
prevailing party for EAJA purposes.
Under the EAJA, there are two tests for determining whether a plaintiff
is a prevailing party. Mendez v. Sullivan, 792 F. Supp. 375,
378 (E.D. Pa. 1992). The first test is whether the litigant "achieved
`some of the benefit sought . . .[in] bringing the suit.'"
Id. (quoting Institutionalized Juveniles v. Sec. of Pub.
Wel., 758 F.2d 897, 910 (3d Cir. 1985)). The second test is whether
"plaintiff's litigation `constituted a material contributing factor in
bringing about the events that resulted in the obtaining of the desired
relief.'" Id. (quoting Instutionalized
Juveniles, 758 F.2d at 916). In the instant case, Plaintiff's
counsel has not established that Plaintiff was a prevailing party under
Regarding the first test, Plaintiff did not achieve any of the benefit
that he sought in bringing his suit.*fn3 The remand for further
administrative proceedings in Plaintiff's case resulted in his claims for
benefits being denied for a second time. This second denial was upheld by
the Appeals Council. Subsequently, Plaintiff's instant action was
dismissed by this Court as a final judgment. Thus, it is clear that
Plaintiff is not a prevailing party as the term is defined under the
first test. In light of the aforementioned, it is also clear that
Plaintiff is not a prevailing party pursuant to the second test. Since
Plaintiff did not obtain any benefit or relief that he sought, his
litigation did not constitute a material contributing factor in bringing
about any events that resulted in the obtaining of his desired relief.
Plaintiff's counsel neither argues, nor shows, that any benefit or
desired relief was obtained by Plaintiff. Counsel merely states that
Plaintiff had substantial grounds for his lawsuit and would have
prevailed on the merits had he lived. Such argument does not satisfy the
burden on Plaintiff, or in this case Plaintiff's counsel, to establish
the threshold requirement of prevailing party status. Since it has not
been established that Plaintiff was a prevailing party for EAJA purposes,
the threshold prerequisite to recovery under the EAJA has not been met.
Thus, the Court grants Defendant's Motion to Deny Plaintiff's Petition.
Consequently, Plaintiff's Application for Attorney Fees is denied.
An appropriate Order follows.