OTIS R. BOWEN, 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 Brief for the Petitioner TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: A court may award EAJA fees only for work in connection with a "civil action" or an "adversary adjudication"; neither term includes work on Social Security proceedings conducted pursuant to a remand A. Social Security proceedings do not become adversarial adjudications on judicial remand B. Social Security administrative proceedings conducted pursuant to a remand are not part of an EAJA "civil action" C. The legislative history of EAJA confirms that it does not apply to Social Security proceedings on judicial remand Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 839 F.2d 1453. The opinion of the district court (Pet. App. 17a-20a) is unreported. JURISDICTION The court of appeals entered judgment on March 14, 1988 (Pet. App. 45a-46a). A petition for rehearing was denied on May 24, 1988 (Pet. App. 47a). On August 11, 1988, Justice Kennedy extended the time for filing a petition for a writ of certiorari September 12, 1988; on September 9, 1988, he further extended that time to and including October 12, 1988, and the petition was filed on that date. It was granted on December 5, 1988. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Equal Access to Justice Act, 5 U.S.C. 504 (Supp. IV 1986) and 28 U.S.C. 2412(d) (Supp. IV 1986), provides in pertinent part: /1/ An 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 (5 U.S.C. 504(a)(1)). "adversary adjudication" means (i) an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise * * * (5 U.S.C. 504(b)(1)(C)). Except as otherwise specifically provided by statute, 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 (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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)). In awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code, or an adversary adjudication subject to the Contract Disputes Act of 1978, the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust (28 U.S.C. 2412(d)(3)). QUESTION PRESENTED Whether attorney fees are available under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(3) (Supp. IV 1986), for Social Security administrative proceedings conducted after a judicial remand. STATEMENT This is an Equal Access to Justice Act (EAJA) attorney fees case arising out of a claim for Social Security and Supplemental Security Income disability benefits. 1. Respondent's original application for benefits, filed in September 1981, alleged that she had been disabled since May 15, 1981, by a variety of physical problems (Pet. App. 36a). The application was denied, and respondent requested a hearing. Because of respondent's behavior at the hearing, the Administrative Law Judge (ALJ) ordered a post-hearing psychiatric examination, and respondent also chose to submit the report of an additional psychological examination (id. at 36a-37a). After considering both the evidence submitted at the hearing and the reports of the post-hearing examinations, on September 30, 1982, the ALJ denied the application on the ground that respondent's impairments did not prevent her from performing work similar to her previous employment (id. at 37a). The Appeals Council approved that decision (id. at 44a). On judicial review, the district court affirmed, finding that the Secretary's decision was supported by substantial evidence (id. at 43a-44a). The court of appeals reversed the judgment of the district court, concluding that the Secretary had (1) failed to consider the combined effect of respondent's impairments and (2) failed to explain the weight accorded to the evidence considered (Pet. App. 40a-42a). The case was remanded to the Secretary with instructions to consider respondent's impairments in combination and to articulate the reasons for the decision with greater specificity (ibid.). While the judicial review proceedings were pending, respondent filed a second application for disability benefits on January 23, 1984, alleging that she had been disabled since August 30, 1982. After a hearing on that application, the ALJ on February 23, 1985, found that respondent was disabled by severe depression, reopened the September 30, 1982, decision, and determined the onset date of respondent's disability to be August 30, 1982 (Pet. App. 18a, 30a, 31a). Respondent has been receiving disability benefits since that time. After the court of appeals issued its remand order on July 23, 1985 (Pet. App. 33a-34a), the case returned to the Appeals Council. Although the Appeals Council noted that the ALJ had technically acted without authority in reopening the September 1982 decision while that decision was still pending on judicial review, it nevertheless concluded that the only period for which the respondent's entitlement remained in dispute was the period between May 15, 1981, and August 30, 1982 (id. at 30a-31a). The Appeals Council accordingly remanded the case to the ALJ for a determination of respondent's disability during that period. The Appeals Council instructed the ALJ to "provide the claimant an opportunity to testify at a supplemental hearing and to submit additional evidence" (id. at 31a). The Appeals Council also directed the ALJ to apply recently revised regulations on mental impairments, and suggested that "(h)e may wish to obtain the testimony of a medical advisor" in this connection (ibid.). The ALJ accordingly held a supplemental hearing, at which a psychiatrist -- at the ALJ's request -- testified about respondent's mental condition (Pet. App. 27a). Based on that expert testimony and other evidence in the record, the ALJ found, based on the 1981 application, that respondent had had a disabling mental impairment continuously since May 15, 1981 (id. at 24a-29a). /2/ The Appeals Council adopted the ALJ's recommended decision, noting that respondent's 1984 application indicated that her emotional condition had continued to deteriorate (id. at 21a-23a). 2. Respondent then filed a petition in district court for attorney fees under the EAJA. The district court found that the Secretary's position had been substantially justified and denied the petition (Pet. App. 17a-20a). The court of appeals again reversed. Concluding that the Secretary had failed to comply with applicable disability regulations, the court of appeals held the district court abused its discretion in finding that the Secretary's position had been substantially justified. /3/ Turning to the question of the amount of fees to be awarded, the court held that respondent was entitled to fees not only for work performed by her attorney in the judicial review proceedings before the district court and the court of appeals, but also was entitled to recover fees for work performed in the post-remand administrative proceedings. The court recognized that under 5 U.S.C. 504(a)(1), an EAJA fee award for work related to administrative agency proceedings may be made only if the agency proceeding is an "adversary adjudication," which by statutory definition includes only a proceeding "in which the position of the United States is represented by counsel or otherwise" (5 U.S.C. 504(b)(1)(C)). The court nevertheless asserted that once the Secretary has taken the position through counsel in the district court that the claimant is not entitled to benefits, all subsequent proceedings are necessarily adversarial. In the court's view (Pet. App. 15a), the fact that "the Secretary chooses not to have representation on remand * * * does not change our belief that the proceeding has become adversarial." The court directed the district court, on remand, to determine the amount of the fee award (id. at 11a n.6). SUMMARY OF ARGUMENT Congress expressly limited EAJA's coverage of administrative proceedings to adversarial adjudications, which it specifically defined as those in which the government's position is represented by counsel or otherwise. The court below refused to apply this statutory definition, and instead read into the statute its own definition of adversary adjudication. Respondent attempts to defend the decision below on the alternative ground that the administrative remand is a part of a continuing judicial action for which fees are available. Neither rationale can be squared with EAJA's language, with the structure of the statute, or with its legislative history. The statute permits fee awards only in "adversary" administrative proceedings -- i.e., those in which the government's position is represented by counsel or otherwise. The government takes no position in Social Security administrative proceedings, either on original consideration or on remand, and accordingly is not represented at those proceedings. In the absence of such representation, the statute precludes the award of attorney fees for representation of the claimant at that state. The decision below is wrong even ignoring the limited statutory definition of "adversary" adjudication, because it overlooks the fact that the issues resolved in the judicial proceedings are binding on the Secretary and may not be contested anew at the administrative level. The issues left open on remand are resolved at the administrative level through precisely the same, non-adversial procedures governing cases before the agency on initial review. Thus, as the record here demonstrates, the administrative proceedings on remand are not adversarial in any sense. Respondent's alternative argument that the remand proceedings should be considered part of the ongoing process of judicial review for which fees may be awarded is inconsistent with the careful statutory distinction between "civil actions" on the one hand and "adversary adjudications" on the other. The former term refers to the judicial part of the process; the latter to the administrative. A court may award a fee for representation in an "adversary adjudication" only on the basis of an evaluation of the government's position in that adjudication. Where, as here, there is no such position, there is simply no basis for an award. Contrary to the court of appeals' view, the 1985 reenactment of EAJA and its legislative history corroborate Congress's intent to bar fees for Social Security administrative proceedings. Congress considered and specifically rejected amendments that would have extended EAJA to Social Security administrative proceedings, including those on remand. Instead, it reenacted the same "adversary adjudication" provisions that had universally been construed to foreclose the award of fees in all Social Security administrative proceedings, thereby signifying its intent to adopt and preserve the settled judicial interpretation. See Pierce v. Underwood, No. 86-1512 (June 27, 1988). Indeed, Congress specifically noted that fees are not available for Social Security proceedings on remand. H.R. Rep. No. 120, 99th Cong., 1st Sess. Pt. 1, at 19-20 (1985). ARGUMENT A COURT MAY AWARD EAJA FEES ONLY FOR WORK IN CONNECTION WITH A "CIVIL ACTION" OR AN "ADVERSARY ADJUDICATION"; NEITHER TERM INCLUDES WORK ON SOCIAL SECURITY PROCEEDINGS CONDUCTED PURSUANT TO A REMAND EAJA consists of two parts, codified in separate sections of the U.S.C. Code. The first part, 5 U.S.C. 504, permits an agency to award attorney fees to a party who prevails in agency-conducted adversary adjudication (5 U.S.C. 504(a)(1)) -- which is specifically defined as "an adjudication under Section 554 of this title in which the position of the United States is represented by counsel or otherwise" (5 U.S.C. 504(b)(1)(C)). /4/ The second part, 28 U.S.C. 2412(d), provides for the award of such fees by a court in a "civil action." Such an action is defined to include "proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action." Thus, it is clear that EAJA applies to proceedings for judicial review of Social Security disability determinations. But EAJA provides for an award of attorney fees for work performed before the agency on the remand from a judicial review proceeding only if that remand was either an "adversary adjudication" or was part of a continuing "civil action," as those terms are used in the statute. It was neither. A. Social Security Proceedings Do Not Become Adversarial Adjudications On Judicial Remand It has long been established -- and indeed respondent does not dispute (see Br. in Opp. 13) -- that Social Security administrative proceedings are typically non-adversarial. /5/ In Richardson v. Perales, 402 U.S. 389, 403 (1971), the Court stressed that the Social Security Administration "operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary." The agency's ALJs are thus barred from pressing a position on the government's behalf; rather, they are charged with a special duty of inquiry to develop on the claimant's behalf a full and fair administrative record. Id. at 410; Heckler v. Campbell, 461 U.S. 458, 471 & n.1 (1983) (Brennan, J., concurring). And, of course, no other agency representative appears in these proceedings to advocate any agency position. It is thus entirely clear that Social Security proceedings are not "adversarial adjudications" under the precise statutory definition contained in EAJA -- there is in these proceedings no "position of the United States * * * represented by counsel or otherwise" (5 U.S.C. 504(b)(1)(C)). The court below did not even attempt to square its ruling with the statutory language. Instead, it simply enunciated a different rule for agency remand proceedings, theorizing that once the government takes a position adverse to the claimant on judicial review, all subsequent agency procedures must be deemed adversarial. But even if the court below were free to ignore the statutory definition of "adversarial adjudication" /6/ its decision would still be wrong, because it represents a fundamental misunderstanding of the agency procedures on remand. Social Security administrative proceedings do not in any sense become adversarial when they are the result of a judicial remand. Instead, remand proceedings are conducted in precisely the same way as original adjudications -- agency regulations make no distinction between the two situations. See 20 C.F.R. 404.944-404.996; Social Security Admin., Office of Hearings and Appeals Handbook Pt. 1, para. 1-944 (Jan. 1984). Indeed, given the effect of a remand and the obligations it places on the agency, any differences in procedure would be difficult, if not impossible, to justify. An administrative agency, like any other inferior tribunal, has no power to deviate from a mandate issued by a reviewing court. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145 (1940); Briggs v. Pennsylvania R.R., 334 U.S. 304, 306 (1948); Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939). If the Secretary disagrees with the court's decision ordering a remand and wishes to continue to contest that decision -- i.e., to maintain his adversarial position -- his only recourse is to appeal a final decision to a higher court. See, e.g., 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); Stone v. Heckler, 722 F.2d 464, 467 (9th Cir. 1983). If the Secretary does not appeal, and instead accepts the remand, the reviewing court's resolution of all issues in dispute in the judicial proceeding is binding on the Secretary in the subsequent administrative proceedings. Those issues are simply not open to further adversarial litigation on remand. Indeed, the precise purpose of the remand is to permit the agency to adjudicate issues that were not resolved in the judicial proceedings. A remand is necessary only when there are issues remaining in the case, or issues created by the court's decision, as to which the agency has taken no adversarial position, and the post-remand agency adjudication deals only with those issues. The facts of this case demonstrate the inaccuracy of the lower court's suggestion that the agency's opposition to the award of benefits in court will continue to color the post-remand proceedings. The Appeals Council, acting pursuant to the court's remand, vacated its prior denial of benefits and instructed an ALJ to conduct a new hearing, using recently amended regulations. The Council also suggested that the ALJ obtain the services of a medical advisor to evaluate the severity of respondent's impairments (Pet. App. 31a). At the subsequent hearing, the government presented no evidence, was not represented by an attorney or any other agent, and in no way pressed a "position" in opposition to respondent's entitlement to benefits. Instead, the ALJ, acting as an adjudicator and not an adversary or advocate for the government, helped the respondent establish an evidentiary record by soliciting the testimony of a medical advisor as recommended by the Appeals Council. This testimony in turn provided an essential basis for finding respondent disabled. Nothing in these post-remand proceedings lends the slightest support to the view that the Secretary's adversarial position in the district court continued to influence the proceedings on remand. B. Social Security Administrative Proceedings Conducted Pursuant To A Remand Are Not Part Of An EAJA "Civil Action" Although the decision below rests on other grounds, respondent argues (Br. in Opp. 8-12) that an administrative proceeding conducted pursuant to a remand from a court is simply a continuation of the ongoing judicial review proceedings, and thus is a part of a "civil action" for which fees are available under 28 U.S.C. 2412(d)(1)(A). The plain language of the statute, however, lends no support to this contention. On its face, the provision on which respondent relies (28 U.S.C. 2412(d)(1)(A)) states that the court may award fees incurred "in any civil action * * * brought by or against the United States in any court having jurisdiction of that action * * *." The proceedings on remand are not brought in a court; rather, they are, by definition, brought before an administrative agency. /7/ Section 2412(d)(3) confirms that Congress used the terms "action" and "civil action" to refer only to proceedings held before a court. /8/ That section refers to an "action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code." /9/ Section 2412(d)(3) further requires the court in the "action" to include in the award fees and other expenses to the same extent the agency could have provided them under Section 504, unless the court finds the government's position was substantially justified "during such adversary adjudication." /10/ Significantly, this Section makes no provision for the court to make an award of fees and expenses for representation in an agency proceeding that is not an adversary adjudication within the meaning of Section 504. The express provision directing the court to award fees for "adversary adjudications," combined with the absence of any provision for an award by the court of fees for agency proceedings that are not adversarial, strongly supports the conclusion that "a civil action" does not include proceedings on remand that are nonadversarial. Thus, Section 2412 as a whole, and subsection 2412(d)(3) in particular, unequivocally demonstrate that the congressional objective was to provide for the award of EAJA fees only for work in connection with agency adjudications that are "adversary," as that term is defined in the statute, whether the award is made by the agency under 5 U.S.C. 504, or by a court under 28 U.S.C. 2412(d). There is no room in this statutory scheme for an interpretation of "civil action" that would sweep under the statute all agency proceedings that are conducted on judicial remand. Cf. Stafford v. Briggs, 444 U.S. 527, 535-536 (1980) (term "civil action" in 28 U.S.C. 1391(e) must be construed in light of underlying congressional objectives and the statutory scheme as a whole). /11/ There would be in addition a very difficult practical problem in attempting to apply Section 2412(d)(3) to a remand proceeding where, as here, the agency has taken no position. The prevailing party is entitled to an award of EAJA fees only if the government's position was not "substantially justified" (28 U.S.C. 2412(d)(1)(A)). Under Section 2412(d)(3), the court is to include in the fee an award for the administrative proceeding unless it concludes that "during such adversary adjudication the position of the United States was substantially justified." Therefore, in order to decide whether a claimant is entitled to fees for work performed before the agency on remand, the statute requires the court to determine whether the agency "position" in the remand proceedings was substantially justified. /12/ It is difficult if not impossible to imagine how such an inquiry would proceed with regard to Social Security remand hearings, because the agency has taken no position on remand. /13/ Indeed, frequently (as here), changes in the applicable regulations or in the claimant's condition will have so substantially affected the claimant's situation that the issues that the agency adjudicators find dispositive on remand will bear little or no relation to the agency's position in the judicial proceeding. In fact, to the extent that an agency position on the remand can be discerned in this case it was that respondent was entitled to benefits. Respondent nonetheless suggests (Br. in Opp. 9, 12) that Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), requires that remand proceedings be viewed as part of an ongoing civil action. Respondent asserts that since the reviewing court retains jurisdiction to review any decision rendered on remand, /14/ the remand order does not terminate the judicial action, and the proceedings on remand must therefore be treated as part of the civil action for purposes of EAJA. /15/ But whether or not a decision remanding a case for further administrative action is "final" for purposes of Section 205(g), this provision has no bearing on whether Congress intended, under a quite different statute, enacted for unrelated purposes, to distinguish between judicial and administrative proceedings. As we have shown, the language and structure of EAJA conclusively demonstrate that Congress intended to make just such a distinction for purposes of that statute. C. The Legislative History Of EAJA Confirms That It Does Not Apply To Social Security Proceedings On Judicial Remand When it first enacted EAJA, Congress specifically recognized the non-adversarial character of Social Security administrative proceedings; it used such proceedings as the best example of ones that were not to be considered "adversary adjudications" for which an attorney fee award would be available. See H.R. Conf. Re. No. 1434, 96th Cong., 2d Sess. 23 (1980): (The statute) 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. Before EAJA was reenacted in amended form in 1985 (see 28 U.S.C. 2412 note), appellate court precedent had unanimously recognized that the 1980 Act's definition of "adversary adjudication" flatly excluded Social Security administrative proceedings. McGill v. HHS, 712 F.2d 28, 30 (2d Cir. 1983), cert. denied, 465 U.S. 1068 (1984); Miller v. United States, 753 F.2d 270, 275 n.3 (3d Cir. 1985); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir. 1983); Clifton v. Heckler, 755 F.2d 1138, 1142-1143 (5th Cir. 1985); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir. 1983); Cornella v. Schweiker, 728 F.2d 978, 988-989 (8th Cir. 1984); Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir. 1984). None of these cases suggested that any different result would obtain if the agency adjudication was pursuant to a judicial remand, /16/ and in fact one of them (Cornella v. v. Schweiker), involved just such an adjudication. /17/ When Congress reauthorized EAJA in 1985, it reenacted the same "adversary adjudication" language that the courts had universally construed as barring coverage of Social Security administrative proceedings. /18/ The only amendment to the definition was to include proceedings before an agency's board of contract appeals. See Act of Aug. 5, 1985, Pub. L. No. 99-80, Section 1, 99 Stat. 183-184, amending 5 U.S.C. 504(b)(1)(C). As this Court recently reaffirmed in Pierce v. Underwood, No. 86-1512 (June 27, 1988), slip op. 13, congressional reenactment of statutory language "of course, generally includes a settled judicial interpretation (of that language). Lorillard v. Pons, 434 U.S. 575, 580-581 (1978)." In any event, Congress could hardly have intended to work a profound change in EAJA's coverage through the single scrap of legislative history relied upon by the court below. Congress was clearly aware that covering Social Security administrative proceedings would greatly increase the number of EAJA fee awards. Indeed, when Congress first enacted EAJA in 1980, it expressly based its EAJA cost projections on the assumption that these proceedings would be excluded from EAJA's coverage. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 20, 22 (1980). A very substantial number of these proceedings are conducted pursuant to remands from the courts. /19/ If Congress had intended to expand EAJA's waiver of sovereign immunity to this extent, it surely would have made that intention clear, presumably by a specific statutory amendment. It did not do so. Instead, the 1985 legislative history unmistakably evidences a congressional intent to preserve the settled judicial construction of the term "adversary adjudication" and to continue to exclude all Social Security administrative proceedings from EAJA's coverage. In 1984, the Senate Judiciary Committee reported a bill that would have defined adversary adjudications as including "hearings pursuant to section 205 and section 1631 of the Social Security Act." S. Rep. No. 586, 98th Cong., 2d Sess. 1-2 (1984). /20/ The House Judiciary Committee, however, considered and rejected a similar provision (130 Cong. Rec. H9301 (daily ed. Sept. 11, 1984) (remarks of Rep. Morrison)) and the provision was not included in the 1984 bill passed by Congress. See 130 Cong. Rec. S13,299 (daily ed. Oct. 3, 1984) (remarks of Sen. Heflin). After the President vetoed the 1984 EAJA reauthorization, /21/ Congress took up the matter again in 1985. The 1985 legislation, however, included no provision similar to the one in the 1984 Senate bill; it instead continued to limit adversary adjudications to proceedings "in which the position of the United States is represented by counsel or otherwise". Act of Aug. 5, 1985, Pub. L. No. 99-80, Section 1, 99 Stat. 183-184 (1985), amending 5 U.S.C. 504(b)(1)(C). The legislative history thus shows that Congress specifically rejected a proposal to extend EAJA to Social Security administrative proceedings, including those on remand. Even congressional proponents of the rejected proposals acknowledged that the 1985 legislation would not permit fee awards for any administrative hearings. Nor was there any suggestion that hearings on remand were an exception to the general rule. /22/ Senator Heflin, for example, actively supported an amendment that would have extended EAJA to Social Security administrative proceedings. See 130 Cong. Rec. S13,299 (daily ed. Oct. 3, 1984) (remarks of Sen. Heflin). Nonetheless, in the floor debate on the 1985 legislation ultimately enacted into law, Senator Heflin noted that "provisions covering proceedings under the Social Security Act, at the administrative hearing level are unable to be incorporated because of institutional opposition"; he therefore stated that, "While I believe this is an area ripe for protection, political realities dictate otherwise. And this seems to be a fight which will have to be fought another day." 131 Cong. Rec. 20,350 (1985) (remarks of Sen. Heflin). The decision below completely ignored this legislative history. Instead, it focused on the single congressional statement that "If * * * the agency does take a position at some point in the adjudication, the adjudication would then become adversarial." H.R. Rep. No. 120, 99th Cong., 1st Sess. Pt. 1, at 10 (1985). The court recognized (Pet. App. 14a n.8) that this statement is simply a quotation from the 1980 legislative history (compare H.R. Rep. No. 120, 99th Cong., 1st Sess. Pt. 1, at 10 (1985) with H.R. Conf. Rep. No. 1434, 96th Cong., 2d Sess. 23 (1980)). Nevertheless, the court read this language as requiring that the 1985 Act be read as providing that if the government has challenged the claimant's position in court, it must be deemed to have taken an adversarial position in any administrative proceedings that occur thereafter. /23/ Pierce v. Underwood, supra, is again instructive. The Court there rejected an argument, based on the same House Report, that the 1985 reenactment had changed the meaning of the statutory standarrd of "substantial justification." As the Court explained (slip op. 13), the 1985 House Report cannot be an authoritative expression of what the 1985 Congress intended, because it is not an explanation of any language that the 1985 Committee drafted, because on its face it accepts the 1980 meaning of the terms of subsisting, and because there is no indication whatever in the text or even in the legislative history of the 1985 reenactment that Congress thought it was doing anything insofar as the present issue is concerned except reenacting and making permanent the 1980 legislation. (Quite obviously, reenacting precisely the same language would be a strange way to make a change.) Exactly the same analysis should apply to the statutory language at issue here. In any event, the snippet of legislative history upon which the court below relied supports its position only if read completely out of context. /24/ In context, it is clear that the 1985 report's allusion to instances in which the government takes a position in the adjudication refers, not to Social Security remand proceedings, but to a narrowly limited -- and now discontinued -- experimental program in which the Secretary was in fact represented by counsel in administrative proceedings. /25/ As the cited report explains (H.R. Rep. No. 120, 99th Cong., 1st Sess. Pt. 1, at 10 (1985)): While this language (defining adversary adjudication) generally excludes Social Security administrative hearings from the Act, Congress made clear in 1980 that "If * * * the agency does take a position at some point in the adjudication, the adjudication would then become adversarial," and thus be subject to the Act. 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). That only Social Security proceedings conducted under this experimental program were to be covered by EAJA is confirmed by remarks of the Chairman of the House Ways and Means Committee, Rep. Rostenkowski (Equal Access to Justice Act Amendments: Hearing on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 118 (1985)): It is true that the Equal Access to Justice Act has been extended to cover the five adversarial hearing experiments that SSA is currently undertaking, in which the government is represented at the ALJ hearing. The rationale for that extension was that, since the government was formally represented, claimants should not be unrepresented, and in such a setting, government payment for attorneys was appropriate. This rationale does not extend to the hearing process in general, either for initial applicants or for the beneficiaries appealing termination of benefits, because the process itself is not adversarial. Significantly, Senator Heflin, who advocated covering Social Security administrative proceedings, also shared this view (131 Cong. Rec. 20,350 (1985)): Under the current provisions of the Equal Access to Justice Act, administrative proceedings where the Government is represented by counsel are covered. However, this provides limited coverage, such as the five pilot adversarial projects relating to social security claims implemented by the Secretary of Health and Human Services. But this Court need not rely simply on negative implications from the legislative history; Congress expressly stated its intent to bar fees for work performed during administrative proceedings conducted pursuant to a remand from the courts. It explained (H.R. Rep. No. 120, 99th Cong., 1st Sess. Pt. 1, at 19-20 (1985)): The court will usually decline to make an award upon the remand decision (in Social Security cases) because the remand order did not yet make the applicant a "prevailing party" and therefore eligible under the EAJA. * * * (T)he remand decision is not a "final judgment," nor is the agency decision after remand. Instead, the District Court should enter an order affirming, modifying, or reversing the final (agency) decision, and this will usually be the final judgment that starts the 30 days (for filing an EAJA petition, see 28 U.S.C. 2412(d)(1)(B)) running. * * * As (the) courts have found(,) the only fees which will be available will be for those activities undertaken in connection with the initial (i.e., judicial) proceedings and not those associated with the administrative proceeding. (Emphasis added.) In sum, the legislative history of the 1985 EAJA, like that of the 1980 Act, unambiguously supports the conclusion that the only Social Security administrative proceedings covered by EAJA were those in the experimental representation program. Neither remand proceedings nor any other currently extant Social Security administrative proceedings are covered, for the simple reason that the government's position is not represented by counsel or otherwise. The substantial administrative burden imposed on the agency by the court of appeals' contrary conclusion is simply inconsistent with congressional intent. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General WILLIAM KANTER JEFFREY A. CLAIR Attorneys JANUARY 1989 /1/ Hereinafter, references to the Equal Access to Justice Act are to the version appearing in the 1986 Supplement, unless the context indicates otherwise. /2/ Due to a typographical error, the ALJ originally stated that respondent's disability onset date was May 15, 1982 (Compare Pet. App. 27a & 28a para. 5 with 28a concluding para.). When respondent's counsel brought this error to his attention, the ALJ amended his recommended decision to correct the error (Pet. App. 29a; App., infra, 1a-2a). /3/ The court of appeals' decision was entered before the Court interpreted the "substantial justification" standard in Pierce v. Underwood, No. 86-1512 (June 12, 1988). Although we believe that the agency's position was substantially justified throughout the proceedings below, we do not here challenge the largely fact-bound decision that it was not. /4/ The reference in the statutory definition to "an adjudication under section 554 of this title" means that EAJA applies only to administrative proceedings conducted pursuant to the formal adjudication provisions of the Administrative Procedure Act. 5 U.S.C. 554. Accordingly, an "adversary adjudication" can include only administrative adjudications. See also H.R. Conf. Rep. No. 1434, 96th Cong., 2d Sess. 23 (1980). The procedures required by the Social Security Act, 42 U.S.C. 301 et seq., for adjudication of disability claims parallel those required by Section 554 of the APA, but since the government is not represented in these proceedings it is unnecessary in this case to decide whether disability proceedings are conducted "under" the APA. See Richardson v. Perales, 402 U.S. 389, 409 (1971). /5/ Respondent argues that her case was not typical, because the ALJ reopened her original application and awarded her benefits while the appeal from the original denial of that application was still being litigated, Br. in Opp. 13-17, and because counsel called the ALJ's attention to a typographical error in the June 25, 1986, recommended decision (see note 1, supra). Br. in Opp. 16, 18. Neither of these circumstances suggests that the particular agency proceedings with regard to respondent's claim were in any way adversarial. /6/ It is of course not free to do so. The court in Kelly v. Bowen, No. 87-1999 (8th Cir. Dec. 14, 1988), slip op. 6-8, specifically rejected the reasoning of the court below, recognizing that the statutory definition is controlling whether or not a court may believe that some broader definition might be desirable as a matter of policy. As the court in Kelly succintly explained, given the statutory definition, "the determinative factor is whether the Secretary was represented by counsel or otherwise at the administrative proceeding, not whether the Secretary has adopted a position" (slip op. 7). /7/ This statutory usage is entirely consistent with the ordinary connotation of the term "civil action", which refers to court proceedings, not proceedings before an agency. The "(t)erm in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law." Black's Law Dictionary 26 (5th ed. 1979). Similarly, the Federal Rules of Civil Procedure provide that "(t)here shall be one form of action to be known as 'civil action'" (Fed. R. Civ. P. 2), and state that "(a) civil action is commenced by filing a complaint with the court" (Fed. R. Civ. P. 3). /8/ The statutory definition of "civil action brought by or against the United States" does not specifically address this issue, stating only that the term "includes an appeal by a party, other than the United States, from a decision of a contracting officer rendered pursuant to a dispute clause in a contract with the Government or pursuant to the Contract Disputes Act of 1978" (28 U.S.C. 2412(d)(1)(E)). Appeals pursuant to the Contract Disputes Act of 1978, 41 U.S.C. 601 et seq., are actions brought in federal courts, not administrative proceedings. Under the Contract Disputes Act, a contractor may appeal the decision of a contractor directly to the United States Claims Court or, in certain limited cases, to a United States District Court. See 41 U.S.C. 609(a). In the alternative, the contractor may first seek review of the contracting officer's decision before an agency board of contract appeals and then appeal to the Federal Circuit or, in certain limited cases, to a United States District Court. 41 U.S.C. 607(g). In each case, the "appeal" entails an action in federal court, not an administrative proceeding. Administrative proceedings under the Contract Disputes Act are covered by EAJA only pursuant to an express statutory provision defining such proceedings as "adversary adjudications." See 5 U.S.C. 504(b)(1)(C)(ii). /9/ Or subject to the Contract Disputes Act of 1978, see note 8, supra. /10/ Similar distinctions between the "civil action" and the agency proceedings are at least implied in subsection 2412(d)(1)(B) (distinguishing between agency record and record in the "civil action") and in subsection 2412(d)(2)(D) (distinguishing between government position "in the civil action," and "the action or failure to act by the agency upon which the civil action is based"). /11/ See also Pennsylvania v. Delaware Valley Citizens' Council For Clean Air Act, 478 U.S. 546, 559 (1986). There, in light of the relevant legislative history where the terms "action" and "proceeding" were used interchangeably, the Court construed the fee-shifting provision of the Clean Air Act, 42 U.S.C. 7604(d), which provides for the award of fees in any "action" brought under the statute, as permitting the award of fees in both judicial and administrative proceedings. There is no similar legislative history in EAJA. Instead, as explained infra, the legislative history strongly supports the conclusion that only administrative adversary adjudications are covered by the Act. /12/ Other courts have recognized that EAJA requires a separate inquiry into whether the position of the United States was "substantially justified" at the particular adversarial stage of the case for which an attorney fee is sought. Cf. Russell v. National Mediation Bd., 775 F.2d 1281, 1291 n.8 (5th Cir. 1985) (court must independently determine whether government's position in EAJA fee litigation was substantially justified before awarding additional fees for the fee litigation); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984) (same); but see Trichilo v. HHS, 823 F.2d 702, 707-708 (2d Cir. 1987). /13/ In this case, the court of appeals did not even attempt to identify the "position" of the agency on remand, but instead rested its holding on the agency's position in the judicial proceeding that led to the remand. That approach is, of course, quite inconsistent with the statutory direction that the court is to consider the government position "during such adversary adjudication," i.e., before the agency. 28 U.S.C. 2412(d)(3). /14/ Section 205(g) of the Social Security Act provides in part as follows: the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. /15/ The courts of appeals have rejected an analogous contention in construing Section 206(b) of the Social Security Act, 42 U.S.C. 406(b), which provides: Whenever a court renders a judgment favorable to a (Social Security) claimant under this title who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation * * *. The majority of courts of appeals have concluded that this provision only authorizes the courts to set fees for work performed for representation before the court; these decisions accordingly hold that the courts are without power to set a Section 206(b) fee for any work performed in administrative proceedings, including proceedings conducted pursuant to a remand from the courts. See, e.g., Gardner v. Menendez, 373 F.2d 488 (1st Cir. 1967); Conner v. Gardner, 381 F.2d 497 (4th Cir. 1967); Fenix v. Finch, 436 F.2d 831 (8th Cir. 1971); MacDonald v. Weinberger, 512 F.2d 144 (9th Cir. 1975). In Webb v. Richardson, 472 F.2d 529, 536 (1972), and Rodriguez v. Bowen, No. 86-1444 (Jan. 11, 1989), the Sixth Circuit has held that the tribunal that ultimately upholds the claim for benefits may set a fee for all attorney services rendered in the case. The court reasoned that this rule would protect litigants and their attorneys and further the interests of economy and efficiency. It did not, however, adopt the rationale urged by respondent here -- that administrative proceedings on remand are to be viewed as part of the court proceedings. Indeed, on facts like those presented in this case, the Sixth Circuit's rule would not permit the court to set a Section 206(b) fee award at all. Rather, the agency, as the tribunal that ultimately upheld the benefit claim on remand, would have the sole authority to set fees under the Sixth Circuit's rule. /16/ Indeed, before the decision below, the only appellate suggestion that an EAJA award might be available for Social Security remand proceedings was a passing remark in Baeder v. Heckler, 826 F.2d 1345, 1347 (3d Cir. 1987). /17/ See 728 F.2d at 988. Despite the belief of the court below that Cornella was inapplicable to the 1985 reenactment of EAJA, the Eighth Circuit in Kelly v. Bowen, No. 87-1999 (Dec. 14, 1988), recently reaffirmed Cornella's continuing validity under the current statute, disagreeing with the Eleventh Circuit's holding in this case. Kelly slip op. 7-8. /18/ The Secretary's regulations (48 Fed. Reg. 45,251 (1983)), as well as model EAJA rules promulgated by the Administrative Conference of the United States (46 Fed. Reg. 32,900, 32,912 (1981)), also made clear that adversary adjudications under EAJA were limited to proceedings in which the agency "is represented by an attorney or other representative * * * who enters an appearance and participates in the proceedings" -- a definition that excludes Social Security administrative proceedings, whether conducted pursuant to a judicial remand or not. /19/ The Social Security Administration's Office of Hearings and Appeals, for example, reports that in FY 1987 alone, SSA disposed of more than 10,000 cases on remand from the courts. /20/ Hearings conducted pursuant to Section 205(g) of the Social Security Act (42 U.S.C. 405(g)) and Section 1631(c)(3) of the Social Security Act (42 U.S.C. 1383(c)(3)) include, inter alia, administrative hearings conducted on remand from the courts. /21/ See President's Memorandum of Disapproval, 20 Weekly Comp. Pres. Doc. 1815 (Nov. 9, 1984). /22/ Remand proceedings are a significant part of the administrative process and involve large numbers of proceedings annually. It is thus hardly likely that legislators focusing on the extent to which EAJA should be applied to Social Security administrative proceedings intended to treat remand proceedings differently, but simply neglected, through oversight, to mention that intention. /23/ The court distinguished the consistent precedent holding that social security administrative proceedings are not covered by EAJA on the ground that they were decided under the 1980 statute (Pet. App. 14a n.8). It did not even attempt to explain why the simple quotation in the 1985 legislative history of a passage from the 1980 legislative history made decisions under the original statute dubious authority. As we explained above, the more logical conclusion is that congressional reenactment of the interpreted terms give these decisions the added weight of legislative approval. /24/ Even in isolation, the statement only ambiguously supports the interpretation given it. The court necessarily read the term "adjudication" to include the entire course of judicial and administrative proceedings involved in the determination of a claim for Social Security benefits. As we have shown, however, the text and structure of the statute make perfectly clear that in the EAJA context, Congress carefully distinguished between judicial and administrative proceedings, and used the term "adjudication" to refer only to the administrative part of the overall process, while reserving the term "action" to refer to the judicial part of the process (see pp. 12-15, supra). Moreover, the court's conclusion from this statement that the position of the United States in the judicial proceedings controls entitlement to fees at the administrative stage of the case simply cannot be reconciled with the statutory provisions requiring the court to analyze the government's justification in the judicial proceeding when considering fees for that stage (28 U.S.C. 2412(d)(1)(A)), and to analyze its justification in the administrative proceeding when considering fees for that stage (28 U.S.C. 2412(d)(3)). See pp. 15-16, supra. /25/ The representation program is described in Salling v. Bowen, 641 F. Supp. 1046 (W.D. Va. 1986), vacated as moot, No. 86-2121 (4th Cir. June 15, 1987), a case in which the district court enjoined the continuation of the project (implemented in five of the approximately 140 hearings offices of the Social Security Office of Hearings and Appeals), principally on the ground that it violated statutory requirements that Social Security administrative proceedings be non-adversarial (641 F. Supp. at 1071-1073). In light of this opinion and experience with the project, the Secretary decided, after filing an appeal in Salling, to discontinue the project. Accordingly, on May 7, 1987, the Secretary revoked the project's authorizing regulations, thereby mooting the case. See 52 Fed. Reg. 17,286. There are now no administrative proceedings under Title II or Title XVI of the Social Security Act in which the Secretary, acting through an attorney or any other representative, enters an appearance before the administrative decisionmaker and takes a position on the claimant's entitlement to benefits. APPENDIX