GEORGE E. KINNEY AND ROGER J. PLOURDE, PETITIONERS V. SECRETARY OF HEALTH AND HUMAN SERVICES No. 90-5628 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The Respondent In Opposition OPINIONS BELOW The decisions of the court of appeals in Kinney (Pet. App. 11-17) and in Plourde (Pet. App. 18-24) are unreported. The decisions of the district court in Kinney (Pet. App. 25-33) and in Plourde (Pet. App. 35-43) are also unreported. JURISDICTION The judgments of the court of appeals were entered on June 5, 1990 (Kinney) and on June 6, 1990 (Plourde). The petition for a writ of certiorari was filed on August 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioners who filed suit to obtain reinstatement of disability benefits and subsequently obtained those benefits administratively pursuant to a statutory change are "prevailing parties" for purposes of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(d), when petitioners had no litigative success and when the Secretary of Health and Human Services never conceded that his position prior to the statutory change was contrary to controlling precedent. STATEMENT 1. Petitioners are recipients of Social Security disability benefits whose benefits were terminated after the Secretary of Health and Human Services decided that their impairments did not impose significant limitations on their abilities to perform basic work-related activities. Pet. App. 12, 19. Petitioners filed suit in the United States District Court for the District of Maine pursuant to 42 U.S.C. 405(g) to challenge these determinations. Pet. App. 25, 35. While Plourde's action was pending in district court, and while Kinney's appeal from the district court's affirmance of the Secretary's decision in his case was pending in the court of appeals, the Social Security Disability Benefits Reform Act of 1984 (the DBRA), Pub. L. No. 98-460, 98 Stat. 1794 (1984), became effective. Pet. App. 12, 19. The DBRA provided new standards for termination cases. The DBRA also mandated that all such actions pending on September 19, 1984 were to be remanded to the Secretary for further proceedings in light of the Act. Pub. L. No. 98-460 Section 2(d)(2)(C) and (D). Pet. App. 53. Kinney's and Plourde's actions were remanded accordingly. On remand, the Secretary reversed himself in both cases, ruling that, under the new DBRA standards, petitioners were still eligible for benefits. Accordingly, the district court dismissed the complaints without prejudice to a further application for attorney's fees. Pet. App. 12-13, 19-20. 2. Petitioners then applied for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d)(1)(A). Pet. App. 13, 20. Under EAJA, fees may be awarded to a "prevailing party" litigating 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." The district court denied the fee applications, ruling that the Secretary's position that petitioners had not been severely disabled had been supported by substantial medical evidence. Pet. App. 13, 20. The district court held that under law in effect at the time in Maine and the First Circuit, "the Secretary's position was not only reasonable, but correct." Pet. App. 30, 40. In affirming the district court's decisions, the court of appeals chose not to address the issue of "substantial justification." Instead, the court of appeals relied on its recent decision in Guglietti v. Secretary of HHS, 900 F.2d 397 (1st Cir. 1990), to hold that petitioners were not entitled to fees under EAJA because they were not prevailing parties. The court noted that petitioners had not "succeeded, in litigation, on an issue which achieved some of the relief sought in initiating the lawsuit," because the remand to the Secretary had been achieved through Congress's mandate under the newly-enacted DBRA, not through any success in litigation. Pet. App. 14, 21. Nor could it be said that petitioner's litigation was the "catalyst" for obtaining the relief sought, because the "'causal link' between (petitioners') litigation and the relief obtained was too tenuous to support a finding that (petitioners') action(s) prompted the Secretary to reinstate (their) benefits." Pet. App. 14, 21. ARGUMENT The affirmances of the district court's two decisions by the court of appeals were correct and do not create a direct conflict with any decisions of this Court or of any court of appeals. Furthermore, the question presented is relevant only to EAJA claims based on lawsuits pending as of September 19, 1984, and is thus of little continuing legal significance. 1. As petitioners point out (Pet. 6), the decisions of the courts of appeals on the EAJA issue in this case affect only those benefit recipients who had been disqualified from receiving Social Security disability benefits prior to September 19, 1984, who appealed those decisions with the assistance of counsel, who had their benefits restored administratively after that date without additional litigation, and who have attorney fee petitions pending. While there may still be some such individuals, their numbers are steadily declining. In such circumstances, further review to resolve any difference in emphasis among the circuits as to the legal standards governing this ever-dwindling number of cases is not warranted. 2. Petitioners argue that the court of appeals' decisions are in a "clear conflict" with decisions from the Fourth, Sixth, Eighth, and Tenth Circuits. Petitioners cite Rhoten v. Bowen, 854 F.2d 667 (4th Cir. 1988), Perket v. Secretary, HHS, 905 F.2d 129 (6th Cir. 1990), Lopez v. Sullivan, 882 F.2d 1533 (10th Cir. 1989), Robinson v. Bowen, 679 F. Supp. 1011 (D. Kan. 1988), aff'd per curiam, 867 F.2d 600 (10th Cir. 1989), and Gowen v. Bowen, 855 F.2d 613 (8th Cir. 1988). Pet. 6. /1/ a. While differing in emphasis, the Fourth Circuit's Rhoten decision does not demonstrate any conflict with the First Circuit's decision in these cases. The First Circuit here held that plaintiffs had to show either that litigation was causally related to their success in obtaining benefits or that it served as the "catalyst" for their ultimate administrative success in order to be entitled to an EAJA fee award. In Rhoten, the Fourth Circuit noted that, as the result of plaintiff's litigative efforts, it had remanded the cases to the Secretary prior to enactment of the DBRA. 854 F.2d at 669. /2/ That is precisely the type of litigative success that the First Circuit demanded, and that petitioners were unable to show in these cases. b. The position that the Tenth Circuit would adopt on the issue in this case is unclear. In Lopez, the Tenth Circuit first noted that the claim for benefits at issue in that case was not controlled by the DBRA at all, and held that it "therefore * * * need not consider whether a mandatory remand (under DBRA) would have precluded prevailing party status for (the claimant)." 882 F.2d at 1535. The court went on, however, to explain the standard for a fee award in terms that do not differ from those used by the First Circuit in these cases: If the SSA acquiesced in the remand as a way to settle or avoid losing the suit then one might conclude that the lawsuit was a catalyst for or causally linked to Lopez' ultimate success and he was, therefore, a prevailing party. Ibid. Thus, insofar as Lopez is relevant here at all, it suggests no conflict between the Tenth and First Circuits. Robinson, like Lopez, is a Tenth Circuit case. The crucial opinion in the case, however, was issued by the district court; the Tenth Circuit simply affirmed the district court's fee award in a three-sentence per curiam decision. Because the Tenth Circuit's brief opinion referred simply -- and somewhat cryptically -- to the "balance of reasons" given in the district court opinion as the basis for its affirmance (867 F.2d at 600), the extent to which the district court opinion can be taken to represent the considered views of the Tenth Circuit on the issue is at best unclear. In light of the emphasis in Lopez on actual litigative success and the district court's ruling here that the Secretary's pre-DBRA position was correct, it cannot be concluded that petitioners' cases would have been decided any differently had they arisen in the Tenth Circuit. c. In the Sixth Circuit case cited by petitioners, Perket v. Secretary, HHS, the Secretary had conceded, prior to the passage of the DBRA, that his litigative position was incorrect under controlling circuit precedent. 905 F.2d at 131. As the Sixth Circuit explained, the Secretary had simply challenged the validity of the existing Sixth Circuit precedent on which the plaintiff's claim to benefits -- prior to the passage of DBRA -- was based. Id. at 133. Thus, it was clear from the outset of litigation that the plaintiff was the prevailing party unless that controlling precedent was going to be overruled. In petitioners' cases, in contrast, the Secretary neither conceded any error nor found it necessary to challenge existing circuit precedent. /3/ Therefore, the claimants in Perket had a far stronger claim to have achieved litigative success than do petitioners, and the result in Perket accordingly does not conflict with the result reached by the First Circuit in these cases. d. Finally, in Gowen an Eighth Circuit panel, while holding that the plaintiff had prevailed for EAJA purposes, found it necessary to distinguish Truax v. Bowen, 842 F.2d 995, 997 (8th Cir. 1988), decided by another panel from the same circuit. See Pet. 6. In Truax, the court of appeals, like the First Circuit here, held that plaintiff was not a prevailing party. The Gowen panel distinguished its decision from Truax by explaining that: if the district court had reached the merits of Gowen's actions, which it did not because of the fortuitous enactment of the (DBRA), it would have found, as have we, that the Secretary was without substantial justification in terminating Gowen's benefits after eight years of entitlement irrespective of the enactment of the (DBRA). In doing so, we conclude that Gowen is a prevailing party for purposes of the EAJA. 855 F.2d at 617, n.3. In petitioners' cases, of course, the district court held, unlike in Gowen, that the Secretary's position was not only substantially justified but correct as a matter of circuit precedent. Pet. App. 33, 42. Thus, the result here is entirely consistent with that reached in Gowen. In any event, petitioner contends only that, in light of Gowen and Truax, "(t)he Eighth Circuit is * * * in conflict with itself on this issue." Pet. 8. An intra-circuit conflict is, of course, for the court of appeals, rather than this Court, to resolve. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). Accordingly, any conclusion that the Eighth Circuit has put itself squarely in conflict with the First Circuit would have to await resolution of the alleged intra-circuit conflict between Gowen and Truax. 3. Petitioners assert that the decision below conflicts with this Court's decision in Texas State Teachers Association v. Garland Independent School District, 109 S. Ct. 1486, 1493 (1989). The Court in Texas State Teachers Association conditioned the payment of fees to civil rights plaintiffs under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. 1988, on success in some significant issue in litigation. As the Court phrased the inquiry, "if the plaintiff has succeeded on 'any significant issue in litigation which achieve(d) some of the benefit the parties sought in bringing suit' the plaintiff has crossed the threshold to a fee award of some kind." 109 S.Ct. at 1493 (citation omitted). In the present cases, petitioners have suggested no litigation success that they actually achieved that would justify attorney fees, and the findings of both courts below establish that there was none. The district court ruled that petitioners were not entitled to disability benefits prior to the enactment of DBRA, i.e., their lawsuits had not and would not have resulted in success on the merits in the absence of DBRA. Pet. App. 25, 35. And the court of appeals held that plaintiffs had ultimately obtained disability benefits not by virtue of some litigative success, but simply by virtue of the congressional enactment of DBRA. Pet. App. 14, 21. Thus, because petitioners could show no success in litigation, the First Circuit's decision is entirely consistent with Texas State Teachers Association. /4/ Petitioners' real objection is to the First Circuit's refusal to require a re-determination of the merits of each disability termination case under pre-DBRA law to decide whether the claimant would have prevailed had the DBRA not been adopted. See Pet. 9. Yet the First Circuit's refusal in Guglietti and here to require "the hypothetical relitigation of cases which, because of the (DBRA's) passage, need not be litigated at all" (Guglietti, 900 F.2d at 403) is fully in accord both with "common-sense" (see Pet. 10) and with this Court's repeated warnings that fee disputes should not be permitted to "spawn a second litigation of significant dimension." Texas State Teachers Association, 109 S. Ct. at 1493. Especially in light of the ever-decreasing legal significance of the issue in this case, differences in approach and emphasis among the circuits (none of which have been shown to have reached incompatible results) do not warrant further review. CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER WILLIAM G. COLE Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 NOVEMBER 1990 /1/ The Seventh Circuit and at least one panel of the Eighth Circuit have adopted the same approach as did the First Circuit in Guglietti v. Secretary of HHS, on which the panel here relied. See Hendricks v. Bowen, 847 F.2d 1255, 1257-1258 (7th Cir. 1988); Truax v. Bowen, 842 F.2d 995, 997 (8th Cir. 1988). But see Gowen v. Bowen, 855 F.2d 613, 617, n.3 (8th Cir. 1988). /2/ The court of appeals has distinguished petitioners' cases and its decision in Guglietti from another First Circuit case, McDonald v. Secretary, HHS, 884 F.2d 1468 (1st Cir. 1989). See Pet. App. 15, 22; Guglietti, 900 F.2d at 401-403. In McDonald, the court of appeals ruled that an EAJA fee award was appropriate because "the remand (by which the plaintiff received a second chance to obtain benefits) resulted not from a change in the law but from the courts' concern that HHS had applied the (law) improperly." 884 F.2d at 1475. The court of appeals noted in Guglietti that the Rhoten case "seems to us to be cast in the McDonald mold." 900 F.2d at 401. /3/ In fact, the district court hearing petitioners' fee requests found that the Secretary's position was "correct in denying disability benefits" (Pet. App. 33) and "supported by medical evidence and * * * reasonable as to fact and law." Pet. App. 42. /4/ Petitioners similarly err in suggesting that the First Circuit in Guglietti, and by extension in these cases, "repeal(ed) (EAJA) by implication" (Pet. 10) and "inferred Congressional intent not to extend EAJA to post-DBRA remands." Pet. 7. The court of appeals simply applied EAJA -- including its "prevailing party" requirement -- to the facts of the cases before it.