LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. ELMER HUDSON

   No. 88-616

   In The Supreme Court Of The United States

   October Term, 1988

   On Writ Of Certiorari To The United States Court Of Appeals For The
Eleventh Circuit

   Reply Brief For The Petitioner

   The court of appeals held that respondent may recover attorney's
fees under the Equal Access to Justice Act (EAJA) for the services
performed by her attorney before the Social Security Administration
(SSA) following the district court's remand of her Social Security
disability claim to the Secretary for further proceedings.  The basis
of the court of appeals' decision was that the proceedings before SSA
constituted an "adversary adjudication" within the meaning of the
EAJA, 5 U.S.C. 504(b)(1)(C) (Supp. IV 1986), and that fees therefore
could be awarded under Section 504(a)(1), which permits the award of
fees to prevailing parties in such adjudications.  See Pet. App.
11a-16a.  We have shown in our opening brief (Gov't Br. 9-12, 18-26)
that this holding is clearly incorrect, because Section 504 was
specifically drafted to exclude administrative proceedings on Social
Security claims.  Perhaps for this reason, respondent devotes only two
pages of her brief to a defense of the court of appeals' rationale.
See Resp. Br. 32-34.  She instead relies principally on the
alternative argument that the award of fees for services rendered by
her attorney on remand could be supported by 28 U.S.C. 2412(d)(1)(A)
(Supp. IV 1986).  See Resp. Br. 11-32.  Section 2412(d)(1)(A),
however, provides for the award of attorney's fees only for services
performed in judicial, not administrative, proceedings, and it
therefore has no application here.

                                  A.

   1. Congress comprehensively addressed the question of the award of
attorney's fees for services performed in administrative proceedings
in 5 U.S.C. 504 (Supp. IV 1986).  Section 504(a)(1) provides that
"(a)n agency that conducts an adversary adjudication shall award, to a
prevailing party other than the United States, fees and other expenses
incurred by that party in connection with that proceeding, unless the
adjudicative officer of the agency finds that the position of the
agency was substantially justified or that special circumstances make
an award unjust." As relevant here, the term "adversary adjudication"
is defined to mean "an adjudication under (5 U.S.C. 554) in which the
position of the United States is represented by counsel or otherwise"
(5 U.S.C. 504(b)(1)(C) (Supp. IV 1986)).  The prerequisite that the
government's position be "represented by counsel or otherwise" in turn
has long been defined under the Administrative Conference's Model
Rules issued pursuant to 5 U.S.C. 504(c)(1) (Supp. IV 1986) and
implementing HHS rules to refer to adjudications in which the position
of the agency "is presented by an attorney or other representative who
enters an appearance and participates in the proceeding" (46 Fed. Reg.
32,900, 32,912 (1981), codified at 1 C.F.R. 315.103(a);  48 Fed. Reg.
45,251, 45,253 (1983), codified at 45 C.F.R. 13.3(a).

   Administrative proceedings on a claim for benefits under the Social
Security Act do not satisfy the foregoing definition, because the
government does not take a "position" on the claim and is not
represented in those proceedings by an attorney or other
representative who enters an appearance and participates in the
proceedings.  Moreover, as respondent and the court below have
conceded (Resp. Br. 27-28;  Pet. App. 13a), the limitation of Section
504 to "adversary adjudication(s)" was adopted in 1980 and retained in
1985 for the specific purpose of excluding Social Security claims from
the coverage of Section 504.  See Gov't Br. 18-22.  And until the
Eleventh Circuit's decision in this case, the courts of appeals had
uniformly held that fees cannot be recovered for services performed in
administrative proceedings before SSA.  See Pet. 7;  Gov't Br. 18.
Respondent argues (Resp. Br. 33) that the exception for administrative
proceedings under the Social Security Act does not apply to
administrative proceedings on remand from the district court.  But
respondent points to nothing in the text or legislative history of
Section 504 to suggest that Congress intended to afford different
treatment to proceedings on remand.

   2. Respondent also argues (Resp. Br. 33) that because the Secretary
took the position in respondent's action for judicial review under 42
U.S.C. 405(g) that the Secretary's first decision denying her claim
for benefits was correct, the Secretary must be deemed to have
continued to take a position opposing her claim for benefits in the
administrative proceedings following the district court's remand
order.  /1/ It is irrelevant, however, whether the Secretary once took
a position in court on the correctness of a prior decision of the
Secretary denying respondent's claim for benefits, because proceedings
in court are covered by a different provision of the EAJA, 28 U.S.C.
2412 (1982 & Supp. IV 1986).  The relevant question is whether counsel
appeared to advance a position of the Secretary in the administrative
proceedings themselves.

   In this case, although the government defended the Secretary's
first decision denying respondent's claim for benefits when respondent
sought judicial review of that decision in court, the court of appeals
concluded that the ALJ had erred in not considering the combined
effect of several impairments (even those that were not severe) and
had not sufficiently explained the weight she gave to certain
evidence.  The court of appeals therefore ordered that the matter be
remanded to the Secretary for reconsideration (Pet. App. 15a-16a;  see
also id. at 33a-34a).  /2/ On remand, the Appeals Council vacated the
ALJ's prior decision denying respondent's claim and remanded the case
to an ALJ for further proceedings consistent with the court's order
and for the submission of a recommended new decision (id. at 30a).
Before the Appeals Council, the Secretary did not take the position on
remand that respondent's claim should be denied.  Nor did the
Secretary appear through counsel or another representative at the ALJ
hearing to advance that or any other position.  The new hearing before
the ALJ, like the first hearing, was non-adversarial, as contemplated
by the governing regulations.  See Richardson v. Perales, 402 U.S.
389, 403 (1971);  Heckler v. Campbell, 461 U.S. 458, 471 & n.1 (1983)
(Brennan, J., concurring).  The effect of the Appeals Council's order
vacating the ALJ's decision therefore was to place respondent in
exactly the same position in which she had been before seeking
judicial review -- namely, with an opportunity for a non-adversarial
evidentiary hearing before the ALJ under applicable legal standards
(including, at the second hearing, the standards mandated by the court
of appeals).  And as in the prior administrative proceedings,
respondent was not entitled to attorney's fees, because the Secretary
did not appear through counsel or other representative to oppose her
claim or to oppose her position on any issues that remained open for
consideration at that hearing.

   3. Respondent, like the court of appeals (see Pet. App. 14a),
relies (Resp. Br. 28, 33) on a passage in the legislative history of
the EAJA concerning Social Security claims, which states that "'(i)f *
* * the agency does take a position at some point in the adjudication,
the adjudication then becomes adversarial.'" H.R. Rep. No. 120, 99th
Cong., 1st Sess. Pt. 1, at 10 (1985), quoting H.R. Conf. Rep. No.
1434, 96th Cong., 2d Sess. 23 (1980).  However, especially when read
in context, it is obvious that this sentence refers only to the
matters occurring entirely within the confines of the administrative
adjudication:  the purpose of the sentence was only to make clear that
fees may be awarded under Section 504 if the Secretary takes a
position (through counsel or another representative) in the
administrative adjudication on issues raised in that adjudication.
/3/ Nothing in the quoted sentence suggests that fees would be
available under 5 U.S.C. 504 (Supp. IV 1986) for services performed in
a non-adversarial administrative proceeding simply because the
Secretary might once have taken a position on different issues in
prior proceedings in court -- proceedings that are governed by a
different provision of the EAJA, 28 U.S.C. 2412 (1982 & Supp. IV
1986).  To the contrary, as respondent acknowledges (Resp. Br. 29-30),
the only situation mentioned in the 1985 House Report in which fees
might be available is when the administrative adjudication of a Social
Security claim is covered by the EAJA due to the appearance of a
representative of the SSA in the administrative adjudication itself
(H.R. Rep. No. 120, supra, at 10 (emphasis added)):

         It is the committee's understanding that the Secretary of
      Health and Human Services has implemented an experiment in five
      locations in which the Secretary is represented at the hearing
      before the administrative law judge.  This is precisely the type
      of situation covered by section 504(b)(1)(C).  While generally,
      Social Security administrative hearings remain outside the scope
      of this statute, those in which the Secretary is represented are
      covered by the Act.

                                  B.

   Apparently recognizing the weakness of the court of appeals'
rationale for awarding fees under 5 U.S.C. 504 (Supp. IV 1986),
respondent devotes the bulk of her brief to the alternative argument
that the court of appeals' award of fees for services performed in the
administrative proceedings following the remand from the district
court may be justified on the basis of 28 U.S.C. 2412(d)(1)(A) (Supp.
IV 1986).  See Resp. Br. 11-32.  Section 2412(d)(1)(A) provides for
the award to a prevailing party of "fees and other expenses * * *
incurred by that party in a civil action * * *, including proceedings
for judicial review of agency action, brought by or against the United
States * * *." Section 2412(d)(1)(A) by its terms applies only to
services performed in a civil action in court.  Nevertheless, relying
on Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546,
559 (1986) (see Resp. Br. 17-19, 26), respondent argues that fees may
be awarded under that section for services her attorney performed in
the administrative proceedings following the district court's remand
order because those proceedings may be considered part of (or
ancillary to) the civil action under 42 U.S.C. 405(g).  Even the court
of appeals rejected this argument (see Pet. App. 12a), and properly
so.

   1. In Delaware Valley, the Court held that fees could be awarded
for services performed by plaintiffs' counsel in administrative
proceedings that the Court found to be reasonably necessary to enforce
the terms of a consent decree entered in a citizens' suit under the
Clean Air Act.  478 U.S. at 557-561.  However, the attorney's-fee
statute at issue in Delaware Valley, unlike the EAJA, did not contain
a separate provision addressing the availability of fees in
administrative proceedings.  Accordingly, the court of appeals
correctly concluded that "Delaware Valley is inapposite here," because
"(t)he EAJA clearly distinguishes between judicial and administrative
proceedings" and because Section 2412(d)(1)(A), upon which respondent
relies, "is limited to judicial proceedings" (Pet. App. 12a).  /4/

   The inapplicability of Section 2412(d)(1)(A) in this setting is
evident from its text.  That section provides for the award of fees
and costs that are "incurred * * * in any civil action * * *,
including proceedings for judicial review of agency action * * *."
This language requires that the fees or expenses be incurred "in" the
"civil action." The quoted language also distinguishes between
"judicial review" and "agency action" and includes only the former in
the scope of the term "civil action," for which fees may be awarded
under Section 2412(d)(1)(A).  This reading of Section 2412(d)(1)(A) is
confirmed by Section 2412(d)(3), which provides that in an action for
judicial review of an adversary adjudication conducted by an agency,
the court may award fees and expenses incurred in the administrative
proceedings to the same extent authorized by 5 U.S.C. 504(a) (Supp. IV
1986).  Congress thus limited the power of a court to award fees for
services performed in administrative proceedings -- the relief
respondent seeks in this case -- to those situations in which the
agency conducted an "adversary adjudication." Accord, 5 U.S.C.
504(c)(1) ("If a court reviews the underlying decision of the
adversary adjudication, an award for fees and other expenses may be
made only pursuant to section 2412(d)(3).").

   Respondent contends (Resp. Br. 22) that Section 2412(d)(3) has no
bearing on the fees that she insists are independently available under
Section 2412(d)(1)(A) for services performed in administrative
proceedings on remand from a court in a civil action for judicial
review of agency action.  But respondent offers no support whatever
for her premise that Section 2412(d)(1)(A) independently authorizes
such an award or for her assertion that Section 2412(d)(3) does not
disturb that supposed authority.  In any event, respondent's premise
that Section 2412(d)(1)(A) authorizes the award in this case is
clearly incorrect.  In light of the principle that any award of fees
and costs against the government is barred by sovereign immunity in
the absence of an express waiver of that immunity (Library of Congress
v. Shaw, 478 U.S. 310, 319 (1986)), the obvious inference to be drawn
from Congress's express provision for a court to award fees for
services performed before an agency only in certain limited
circumstances under Section 2412(d)(3) is that Congress foreclosed
such an award by a court in all other circumstances, including where,
as here, the agency did not conduct an adversary adjudication.  United
States v. Erika, Inc., 456 U.S. 201, 208 (1982);  cf. Bowen v.
Galbreath, No. 86-1146 (Feb. 24, 1988), slip op. 3.

   2. Respondent also is fundamentally mistaken in her view that the
administrative proceedings before the ALJ and the Appeals Council
following the district court's remand order were part of the civil
action she had filed in district court under 42 U.S.C. 405(g).  Under
the Social Security Act, it is the Secretary, not a court, who has
primary responsibility for adjudication of claims for disability
benefits.  See 42 U.S.C. 405(a) and (b), 423, 1383 (1982 & Supp. IV
1986).  The courts have only a limited role to play, by entertaining
actions under 42 U.S.C. 405(g) for judicial review (under narrow
standards) of the final decisions of the Secretary denying claims for
benefits, and the vast majority of claims are resolved without resort
to the judicial process.  Accordingly, when a district court, on
judicial review under 42 U.S.C. 405(g), remands a case to the
Secretary for further proceedings, the court is returning the claim to
the officer having primary jurisdiction over the claim.  It
necessarily follows that where, as here, the Secretary renders a
decision in favor of the claimant in the administrative proceedings on
remand and awards benefits to the claimant pursuant to that decision,
the Secretary does not act, in the manner of a special master, as an
agent of the court.  The Secretary exercises his own statutory
authority under 42 U.S.C. 405(b) or 1383(c) (1982 & Supp. IV 1986),
just as he does when he renders a decision in favor of the claimant in
the first round of administrative proceedings, before the claimant has
had any occasion to seek judicial review.  /5/

   This statutory arrangement was respected in this case.  The
district court remanded the case "to the Secretary for further
consideration" (Pet. App. 34a) under the Secretary's own authority.
Thereafter, it was the Appeals Council, not the district court, that
rendered the decision in favor of respondent (id. at 23a).  Contrary
to respondent's contention (Resp. Br. 18), the Appeals Council's
decision on remand was not then affirmed by the district court.
Instead, following the Appeals Council's decision, the district court
entered an order on December 1, 1986, dismissing respondent's action
for judicial review, because the Secretary's award of benefits to
respondent on remand rendered further judicial proceedings
unnecessary.  App., infra, 1a-2a.  This sequence of events confirms
that respondent's action for judicial review of the Secretary's
decision denying her claim for benefits was effectively terminated on
the merits when the district court remanded the case to the Secretary
on July 24, 1985.

   3. Respondent contends (Resp. Br. 13-14), however, that the
administrative proceedings on remand must be considered part of the
judicial action because a court does not make a final disposition of
the case for EAJA purposes until after proceedings have been completed
on remand.  Once again, respondent misapprehends the statutory scheme.

   a. Where a court reverses or modifies the Secretary's decision
denying a claim for benefits and remands the case to the Secretary for
further proceedings, the claimant is not yet a "prevailing party" in
the judicial proceedings for purposes of the award of fees under the
EAJA.  Under established precedent, the claimant cannot recover fees
and expenses incurred in the judicial proceedings under 42 U.S.C.
405(g) unless he thereafter is awarded benefits in the administrative
proceedings on remand (or in subsequent judicial proceedings under 42
U.S.C. 405(g) if the claim is again denied by the Secretary on
remand).  In order to assure that a claimant is not foreclosed from
recovering fees under Section 2412(d)(1)(A) at a later date, the
courts have held that the district court may retain jurisdiction
following a remand, at least for purposes of awarding attorney's fees
under Section 2412(d)(1)(A) if the claimant ultimately is successful,
and that the time for filing a petition for fees under Section
2412(d)(1)(A) therefore does not begin to run until after a motion or
other filing is made in the district court that formally notifies the
court of the favorable decision of the Secretary on remand.  /6/ See
Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883-885
(3d Cir. 1984);  Guthrie v. Schweiker, 718 F.2d 104, 106 (4th Cir.
1983).  Congress endorsed this practical solution to the award of fees
when it reenacted the EAJA in 1985.  See H.R. Rep. No. 120, supra, at
19-20, quoted in Resp. Br. 30-31;  see also S. Rep. No. 586, 98th
Cong., 2d Sess. 21 (1984).  However, the fact that Congress, as a
procedural matter, authorized a court to make a delayed award of fees
and other expenses incurred in pre-remand judicial proceedings under
42 U.S.C. 405(g) does not render the post-remand administrative
proceedings part of the judicial action.  Congress's solution
therefore does not authorize a court to make an award under Section
2412(d)(1)(A) of fees and other expenses incurred by the claimant in
the administrative proceedings on remand.  Indeed, the House Report
unambiguously forecloses that result.  After discussing the practical
solution fashioned by the Guthrie and Brown courts to the award of
fees in Social Security cases that are remanded to the Secretary, the
House Report states that "the only fees which will be available will
be for those activities undertaken in connection with the judicial
proceedings and not those associated with the administrative
proceeding." H.R. Rep. No. 120, supra, at 20.

   Respondent attempts to explain away this decisive legislative
history by asserting (Resp. Br. 31 n.20) that the sentence in the
House Report excludes only fees for services performed in an agency
proceeding that took place prior to the filing of the action for
judicial review, not services performed in agency proceedings
following the order of remand.  As with respondent's other efforts to
avoid the consequences of Congress's deliberate decision to exclude
administrative proceedings on Social Security claims from coverage
under the EAJA, respondent offers absolutely no support for her notion
that the House Report distinguishes between "prior" agency proceedings
and agency proceedings following a remand from the district court.  On
its face, the language of the House Report is all-inclusive and
applies equally to both.  In addition, the very subject of the passage
in the House Report was the remand of Social Security cases and the
action that might be taken by the district court following the
Secretary's decision on remand.  It therefore is especially clear that
the House Report had agency proceedings on remand specifically (if not
exclusively) in mind when it stated that fees for activities
"associated with the administrative proceeding" would not be available
under Section 2412(d)(1)(A).

   b. Moreover, in arguing that administrative proceedings on remand
are part of the judicial proceedings under 42 U.S.C. 405(g),
respondent erroneously relies (Resp. Br. 13-14) on language in 42
U.S.C. 405(g) that is inapplicable to this case.  Specifically,
respondent quotes a portion of the sixth sentence of Section 405(g)
that provides that the court "may at any time order additional
evidence to be taken before the Secretary, but only upon a showing
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in
a prior proceeding";  the sixth sentence then further provides that
after the case is remanded and after hearing additional evidence, the
Secretary shall modify or affirm his findings of fact and decision and
shall file them with the court.  Respondent argues that this procedure
suggests that the proceedings on remand are merely ancillary to the
judicial proceedings and that the district court does not finally
dispose of any remanded case until after the Secretary files modified
or additional findings and a new decision with the district court and
the court then affirms, modifies, or reverses that decision.  Contrary
to respondent's reading, however, the procedure she cites applies only
where the district court remands the case to the Secretary --
typically at an interlocutory stage of the judicial proceedings -- to
allow the Secretary to receive newly discovered evidence, so that the
court will have the benefit of a complete record when reviewing the
decision of the Secretary.  That was not the basis of the remand in
this case.  Neither the court of appeals nor the district court made
any mention of newly discovered evidence, and neither ordered the
Secretary to receive new evidence or to file anything further with the
district court after the remand.

   Of course, even if this case were governed by the sixth sentence of
Section 405(g), that would not in any way alter the applicable EAJA
analysis.  Respondent would still have no entitlement to fees for
proceedings conducted by the agency on remand because they would not
be "adversary adjudication(s)" within the meaning of Section 504, and
Section 2412(d)(1)(A), for the reasons previously given (see pp. 9-10,
supra), would not authorize fees for any services that were not
performed in court as part of the "civil action" itself.  In any
event, it is clear that this case is not governed by the sixth
sentence of Section 405(g).  The court of appeals reversed the
Secretary's decision on the merits and only then remanded to the
Secretary for further proceedings, in which the ALJ would consider the
combined effect of several impairments and explain the weight to be
given to evidence that was already in the record.  Section 405(g) does
not require the Secretary to file modified or additional findings and
a new decision with the district court in these circumstances,
because, unlike the cases involving a remand for the receipt of new
evidence, the court has completed its review of the Secretary's
decision.  Such cases are governed by the fourth sentence of Section
405(g), which provides that the court shall have the power to enter,
upon the pleadings and transcript of the administrative record, "a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause (to the Secretary) for
a rehearing." The eighth sentence of Section 405(g) then provides that
"(t)he judgment of the court shall be final except that it shall be
subject to (appellate) review in the same manner as a judgment in
other civil actions." /7/ The fourth and eighth sentences of Section
405(g) thus make clear that an order of the district court that
modifies or reverses the Secretary's decision on the merits and
remands for a "rehearing" is a "final judgment" that effectively
terminates the proceedings for judicial review of the particular
decision of the Secretary that was modified or reversed.  /8/ After
the remand, the Secretary will enter a new decision, which, if it is
adverse to the claimant, will then be independently subject to
judicial review under Section 405(g).

   Where, as here, the Secretary's new decision on remand is favorable
to the claimant, it of course is appropriate for the Secretary to file
that decision with the district court, so that the court may consider
whether the claimant should be awarded EAJA fees for the work
performed by his attorney in the judicial proceedings that led to the
remand.  But in that event, it is the decision of the Secretary on
remand, not any subsequent order of the court, that renders the
claimant a prevailing party and thus supplies the basis for the award
of benefits to the claimant for the earlier judicial proceedings.  The
sixth sentence of 42 U.S.C. 405(g) therefore lends no support to
respondent's position in this case that the administrative proceedings
following the remand from the district court were actually part of the
civil action under Section 405(g).

   4. Finally, contrary to respondent's contention (Resp. Br. 24), the
result mandated by the text and legislative history of the EAJA does
not bar a claimant from retaining a lawyer to assist him in
administrative proceedings on remand or require the attorney either to
assume an undue risk that he will not be paid or to stand aside while
the claimant presents his claim on his own.  Although fees for
services performed in administrative proceedings are not available
under the EAJA, the attorney may recover fees under 42 U.S.C. 406 out
of past-due benefits awarded to the claimant in Title II cases.  See
Bowen v. Galbreath, No. 86-1146 (Feb. 24, 1988), slip op. 1-3.
Congress was aware of this alternative mechanism when it reenacted the
EAJA in 1985, and, in order to avoid duplicative fee awards for
services performed in court, it adopted a mechanism for the
coordination of payments under 42 U.S.C. 406(b) and the EAJA for such
services.  See Act of Aug. 5, 1985, Pub. L. No. 99-80, Section 3, 99
Stat. 186.  The absence of any similar coordinating provision with
regard to 42 U.S.C. 406(a) -- which authorizes fees for services in
the administrative proceedings -- suggests that Congress did not
believe that EAJA covered fees for such proceedings.

                      * * * * *

   For the foregoing reasons and the additional reasons stated in our
opening brief, it is respectfully submitted that the judgment of the
court of appeals should be reversed insofar as it holds that
respondent may recover fees and other expenses incurred in the
administrative proceedings following the order of remand from the
district court.

   WILLIAM C. BRYSON

      Acting Solicitor General

   APRIL 1989

   /1/ Respondent asserts (Resp. Br. 21 n.15) that positions taken by
the government in court were "available" to the ALJ in the proceedings
on remand, but she offers no evidentiary support for that assertion.
Although the orders and opinions of the courts presumably were
available to the ALJ, we have been informed by HHS that the pleadings
filed by the parties in actions for judicial review under 42 U.S.C.
405(g) are not ordinarily furnished to the Appeals Council or the ALJ
when a case is remanded by the court.

   /2/ Because this case involved only one claimant, the Secretary
elected not to seek further review of the court of appeals' holding
that the Secretary was required to consider the combined effect of
several unrelated and non-severe impairments prior to enactment of
Section 4 of the Social Security Disability Benefits Reform Act of
1984, Pub. L. No. 98-460, 98 Stat. 1800.  The 1984 amendments required
the Secretary to consider the combined effect of multiple impairments
on a prospective basis, effective December 1, 1984.  See 42 U.S.C.
423(d)(2)(C), 1382c(a)(3)(G) (Supp. IV 1986);  Bowen v. Yuckert, No.
85-1409 (June 8, 1987), slip op. 11-14.  It is the Secretary's
position that the prior regulations did not require consideration of
the combined effect of several unrelated impairments unless each
impairment satisfied the threshold standard of "severity" that was
sustained by this Court in Yuckert, and that those prior regulations
were a valid implementation of the Social Security Act prior to the
1984 amendments.  A fortiori, we believe that the Secretary's position
on that issue in this case was "substantially justified" for purposes
of the EAJA, especially since the court below acknowledged (Pet. App.
8a-9a) that it had sustained the Secretary's approach in a prior
decision (see McSwain v. Bowen, 814 F.2d 617, 620 (11th Cir. 1987)).
Although the merits of the combined-impairments issue are not before
the Court in this case, the validity of the Secretary's pre-1984
approach remains a matter of substantial importance in the
administration of the disability programs because a number of major
class action suits challenging the Secretary's pre-1984 approach are
still pending in the lower courts.

   /3/ The relevant portion of the Conference Report on the 1980 Act
states (at 23):

         The conference substitute defines adversary adjudication as
      an agency adjudication defined under the Administrative
      Procedures Act where the agency takes a position through
      representation by counsel or otherwise.  It is intended that
      this definition precludes an award in a situation where an
      agency, e.g., the Social Security Administration, does not take
      a position in the adjudication.  If, however, the agency does
      take a position at some point in the adjudication, the
      adjudication would then become adversarial.

Under this account, in order for an "agency adjudication" to "become
adversarial," SSA must take a position, through counsel or another
representative, "in the adjudication" -- i.e., in the administrative
adjudication conducted by the agency.

   /4/ Respondent's reliance (Resp. Br. 17-18 n.12, 22 n.16, 25) on
Webb v. Dyer County Bd. of Educ., 471 U.S. 234 (1985), is also
misplaced.  In Webb, the Court held that fees could not be recovered
under 42 U.S.C. 1988 for services performed in administrative
proceedings before a state agency, although the Court observed that
fees might be available in other circumstances in which such services
were reasonably calculated to lead to success in the civil suit.  In
this case, the services performed by respondent's attorney before SSA
were not directed to an ultimate award of benefits by the court, but
to an award by the agency itself in the non-adversarial proceedings
conducted by the agency on remand from the court.  In any event, 42
U.S.C. 1988, unlike the EAJA, does not separately address the subject
of the availability of fees for services performed in administrative
proceedings in a manner that precludes an award in a particular
category of administrative proceedings (here, any such proceedings
that are not "adversary adjudications").

   /5/ This Court emphasized the distinction between primary
administrative authority and limited judicial review in another case
concerning a remand from a reviewing court to an agency.  See FCC v.
Pottsville Broadcasting Co., 309 U.S. 134, 141 (1940).  See also
Heckler v. Lopez, 463 U.S. 1328, 1337-1338 (1983) (Rehnquist, Circuit
Justice).

   /6/ If, however, the remand is solely for the calculation of the
benefits due (see, e.g., Martindale v. HHS, No. CA-87-AR-5367-NE (N.D.
Ala. Nov. 30, 1988), appeal pending, No. 89-7105 (11th Cir.), it is
clear at that point that the claimant is the EAJA "prevailing party,"
so that the time for filing a petition for fees runs from the date of
the remand.

   /7/ Congress recognized the distinction between the two types of
remands when it amended Section 405(g) in 1980 to restrict the
circumstances in which a court may remand a case for further action on
the motion of the Secretary or on its own motion.  Social Security
Disability Amendments of 1980, Pub. L. No. 96-265, Section 307, 94
Stat. 458;  see H.R. Rep. No. 100, 96th Cong., 1st Sess. 13 (1979);
see also S. Rep. No. 408, 96th Cong., 1st Sess. 59 (1979);  H.R. Conf.
Rep. No. 944, 96th Cong., 2d Sess. 58-59 (1980).

   /8/ In Cohen v. Perales, 412 F.2d 44, 48 (5th Cir. 1969), rev'd on
other grounds sub nom. Richardson v. Perales, 402 U.S. 389 (1971), the
court of appeals noted the distinction between the two types of remand
orders under 42 U.S.C. 405(g) and relied on the "final judgment"
language in Section 405(g) in holding that the Secretary could take an
appeal under 28 U.S.C. 1291 from the order of the district court that
reversed the decision of the Secretary and remanded the case to the
Secretary for further proceedings applying different legal standards.
The court also reasoned that if the Secretary could not appeal the
remand order, he might be effectively foreclosed from challenging the
district court's legal rulings.  This Court did not advert to the
jurisdictional issue in its opinion in Richardson v. Perales, but
because the issue was discussed in the opinion under review and
because the jurisdiction of this Court under 28 U.S.C. 1254(1)
depended on whether the case was properly "in" the court of appeals
under 28 U.S.C. 1291 (see United States v. Nixon, 418 U.S. 683, 690,
692 (1974)), the Court presumably was satisfied that the court of
appeals had correctly resolved the jurisdictional issue.

   Notwithstanding the language of 42 U.S.C. 405(g), the Fifth
Circuit's decision in Cohen v. Perales, and the practical
considerations weighing in favor of appealability, some courts of
appeals have held that the Secretary cannot appeal an order of the
district court that reverses a decision of the Secretary on the merits
and remands for further proceedings.  See, e.g., Finkelstein v. Bowen,
No. 88-5318 (3d Cir. Mar. 3, 1989);  Harper v. Bowen, 854 F.2d 678
(4th Cir. 1988);  but see Daviess County Hospital v. Bowen, 811 F.2d
338 (7th Cir. 1987).  But whatever the ultimate resolution of the
appealability issue, the administrative proceedings on remand are not
part of the civil action under 42 U.S.C. 405(g).

   APPENDIX