At page 172 Determining recovery of attorneys' fees and costs on appeal9 citing caseswhere all legal issues were questions of first impression in circuit, agency’s action in seeking clarification from courts was reason able
- David J. Powell & the Est. of Jeane D. Powell, Deceased, David J. Powell v. Comm'r of Internal Revenue, 891 F.2d 1167 (5th Cir. 1990).published See, e.g., United States v. Estridge, 797 F.2d 1454, 1459-60 (8th Cir.1986) (court held that "the government was not substantially justified in appealing the district court’s EAJA award”); Cornella v. Schweiker, 741 F.2d 170, 171, 172 (8th…
- Delton v. KEMP, Appellant, v. Margaret HECKLER, Sec'y, Dep't of Health & Human Servs., Appellee, 777 F.2d 414 (8th Cir. 1985).publishedSee 28 U.S.C. § 1920 ; Cook v. Heckler, 751 F.2d at 241 ; Cornella v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984).
- Lawrence E. MARTIN, Plaintiff-Appellant, v. Margaret M. HECKLER, Sec'y of Health & Human Servs., Defendant-Appellee, 754 F.2d 1262 (5th Cir. 1985).publishedCornella v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984); Martin v. Lauer, 740 F.2d 36, 43 (D.C.Cir.1984).
- Griffen COOK, Appellant, v. Margaret HECKLER, Sec'y of Health & Human Servs., Appellee, 751 F.2d 240 (8th Cir. 1984).publishedSee 28 U.S.C. § 2412 (a); FRAP 39; 28 U.S.C. § 1920 ; Cornelia v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984).
- Sadou Bah v. Mark Cangemi, etc., No. 08-1705 (8th Cir. Nov. 28, 2008).publishedSee Cornella v. Schweiker, 741 F.2d 170, 172 (8th Cir. 1984).
- Bah v. Cangemi, 548 F.3d 680 (8th Cir. 2008).publishedSee Cornelia v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984).
- Vernice Dubose, Susan Daigle, Individually & on Behalf of All Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. Windham Heights Assocs., a Ltd. P'ship Anthony Assocs., a Gen. P'ship & Simon Konover, Individually & in His Off. Capacity as a Gen. Partner in Windham Heights Assocs. & Anthony Assocs., Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant- Cross-Appellee. Claudia Walter & Dominick Cortese, Individually & on Behalf of All Other Persons Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. Carabetta Enter., Inc., a Corp. Organized & Existing Under the Laws of the State of Connecticut, Located in the Town of Meriden, Cnty. of New Haven, State of Connecticut, Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant- Cross-Appellee. Janette Little, Individually & on Behalf of All Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. Richard Brown, Individually & in His Capacity as Part-Owner of East Hartford Estates Oak Mgmt. Co., Inc., a Connecticut Corp. Louis Brown, Individually & in His Capacity as Part-Owner of East Hartford Estates, Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant- Cross-Appellee. May Pleasant, Individually & on Behalf of Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Sec'y of the U.S. Dep't of Hous. & Urban Dev. Tuscan Bhd. Homes, Inc., a Connecticut Corp., Samuel R. Pierce, Jr., Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant-Cross-Appellee. Pantaleon Morales, Ylda Ladson & Margaret Williams, Individually & on Behalf of Those Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. William H. Hernandez, Jr., Individually & in His Capacity as Manager for Connecticut for the U.S. Dep't of Hous. & Urban Dev. Canterbury Gardens Coop., Inc. & Ripps Realty, Inc., Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. William H. Hernandez, Jr., Individually & in His Capacity as Manager for Connecticut for the U.S. Dep't of Hous. & Urban Dev., Defendants-Appellants-Cross- Cathy Adams, Sheila Caqette, Barbara Littlejohn & Hazel French, Individually & on Behalf of All Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. Branford Manor Assocs., Bay Mgmt. Corp., Marvin S. Gold, Annette E.P. Gold, Milton A. Bernblum, John J. Groves, & Burton Levy, Individually & as Gen. Partners in Branford Manor Assocs., Samuel R. Pierce, Jr., Individually & in His Off. Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant- Cross-Appellee. Merry Ellen Grundman, Individually & on Behalf of All Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev. John Errichett, Individually & in His Capacity as Owner of Highwood Apts. Creative Mgmt. & Realty, a Connecticut Corp., Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y of the U.S. Dep't of Hous. & Urban Dev., Defendant-Appellant-Cross- Joann Johnson & Frank Jackson, Individually & on Behalf of All Others Similarly Situated, Connecticut Legal Servs., Inc., San Fernando Valley Neighborhood Legal Servs., Appellees-Cross-Appellants v. Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y, U.S. Dep't of Hous. & Urban Dev. William H. Hernandez, Jr., Individually & in His Capacity as Manager for Connecticut for the U.S. Dep't of Hous. & Urban Dev. & Ripps Realty, Inc., Samuel R. Pierce, Jr., Individually & in His Capacity as Sec'y, U.S. Dep't of Hous. & Urban Dev. William H. Hernandez, Jr., Individually & in His Capacity as Manager for Connecticut for the U.S. Dep't of Hous. & Urban Dev., Defendants-Appellants-Cross, 761 F.2d 913 (2d Cir. 1985).published(where all legal issues were questions of first impression in circuit, agency's action in seeking clarification from courts was reasonable)
- Dubose v. Pierce, 761 F.2d 913 (2d Cir. 1985).published(where all legal issues were questions of first impression in circuit, agency’s action in seeking clarification from courts was reason able)
- Rosario Gutierrez v. Jo Anne Barnhart, Comm'r, Soc. Sec. Admin., 274 F.3d 1255 (9th Cir. 2001).publishedSee TKB Int’l, Inc. v. United States, 995 F.2d 1460, 1461, 1468 (9th Cir.1993) (holding that the government was substantially justified in litigating an “interesting question of whether a federal tax lien ... is valid ... as against a subs…
At page 171 Determining substantial justification for appeal of award4 citing casescourt determined “that the Secretary’s position in resisting an award of fees, as opposed to her position in denying disability benefits, was reasonable, ...
- David J. Powell & the Est. of Jeane D. Powell, Deceased, David J. Powell v. Comm'r of Internal Revenue, 891 F.2d 1167 (5th Cir. 1990).published (court determined “that the Secretary’s position in resisting an award of fees, as opposed to her position in denying disability benefits, was reasonable, ...)
- Scott v. Sullivan, 729 F. Supp. 39 (E.D. Va. 1989).publishedSee Continental Web Press, Inc. v. N.L.R.B., 767 F.2d 321 , 324 (7th Cir.1985); Cornelia v. Schweiker, 741 F.2d 170, 171 (8th Cir.1984); Rawlings v. Heckler, 725 F.2d 1192 (9th Cir.1984).
- 27 soc.sec.rep.ser. 18, unempl.ins.rep. Cch 14888a Claire McDonald v. Sec'y of Health & Human Servs., 884 F.2d 1468 (1st Cir. 1989).published See Lee, 799 F.2d at 39-40 ; Continental Web Press, Inc. v. NLRB, 767 F.2d 321 , 324 (7th Cir.1985); Cornella v. Schweiker, 741 F.2d 170, 171-72 (8th Cir.1984).
- Johnson v. United States, 16 Cl. Ct. 321 (Ct. Cl. 1989).publishedIn Cornelia v. Schweiker, 741 F.2d 170, 171 (8th Cir.1984), the Court recognized this distinction by noting that “the ‘position’ we must examine here is analytically dissimilar from the Secretary’s ‘position’ analyzed when we decided the m…
Other citing cases
- United States v. Sidney Estridge, James F. O'crowley, Jr., Herbert Maslin, 797 F.2d 1454 (8th Cir. 1986).published
- Haitian Refugee Ctr., an Unincorporated, Not for Profit Org. v. Edwin Meese, III , Attorney Gen. of the United States, 791 F.2d 1489 (11th Cir. 1986).published
- Oak Knoll Cellar v. Comm'r, 68 T.C.M. 412 (Tax Ct. 1994).unpublished
- Mental Health Ass'n v. Heckler, 620 F. Supp. 261 (D. Minn. 1985).published
v.
Richard Schweiker, Secretary, Health & Human Services
In Cornelia, v. Schweiker, 728 F.2d 978 (8th Cir.1984), we held that the Social Security Administration was not “substantially justified” in denying Wallis D. Cornelia disability benefits. Under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412; 5 U.S.C. § 504 (Supp.1982), we therefore awarded him attorneys’ fees incurred in connection with the district court proceedings. Cornelia has now applied for an award of fees and costs incurred in his appeal to this court. Because we conclude that the Secretary’s position in resisting an award of fees, as opposed to her position in denying disability benefits, was reasonable, we deny Cornelia’s application.
A prevailing party may obtain attorneys’ fees under the EAJA only where the position of the government was not “substantially justified.” This is essentially a test of reasonableness in law and fact. Cornelia, 728 F.2d at 981-82. As indicated, on the merits we concluded that an award of fees was proper since the Secretary was unreasonable in twice denying Cornelia disability benefits. At first blush, it may appear that we should also award fees for the work done on appeal since the Secretary’s position in resisting an award of attorneys’ fees is necessarily and inextricably intertwined with her position on the merits.
Upon a close examination of the question, however, we believe that such a result is not required. This is true because the “position” we must examine here is analytically dissimilar from the Secretary’s “position” analyzed when we decided the merits. [1] As stated, on the merits we examined the Secretary’s position in denying Cornelia disability benefits. On appeal from the district court’s denial of attorneys’ fees, however, the Secretary’s position was that: (1) the district court correctly held that her previous position in denying benefits was substantially justified; (2) the EAJA does not apply to SSA cases; (3) a claimant cannot recover for work performed prior to the effective date of the EAJA; and (4) a[*172] claimant cannot recover for work performed at the administrative level. [2]
Although we ruled against the Secretary on three of the above four issues, all of the purely legal issues were questions of first impression in this circuit. Prior to our decision in Cornelia, the Secretary had no guidance from this circuit concerning the proper scope and application of the EAJA to social security cases. [3] We believe that the Secretary was reasonable in seeking specific rulings from this court on these issues. See Wolverton v. Heckler, 726 F.2d 580, 583-84 (9th Cir.1984); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984) (where issues unsettled in a particular circuit, the Secretary is substantially justified in litigating them). Moreover, the Secretary was defending a district court decision in her favor rather than appealing an adverse ruling. Although the Secretary may not always be reasonable in seeking to uphold a favorable decision, especially if the decision is patently wrong, in these particular circumstances the district court’s holding on the substantial justification issue was certainly arguable and the factual issues were not altogether simple. Therefore, we conclude that the Secretary should not be held liable for Cornelia’s attorneys’ fees on appeal to this court. However, because Cornelia was a prevailing party, he may recover the costs of the appeal, see 28 U.S.C. § 2412(a); FRAP. 39, as those costs are specifically allowable under 28 U.S.C. § 1920 or rule of this court.
In all other respects, the application for attorneys’ fees and costs is denied.
. We acknowledge, however, that this distinction is not an easy one to make. It is a bit like looking into a mirror only to see another mirror’s reflection and has been described as a “Kafkaesque judicial nightmare.” Cinciarelli v. Reagan, 729 F.2d 801, 810 (D.C.Cir.1984).
. On appeal, the Secretary abandoned her position that pro bono attorneys could not recover fees under the EAJA. We addressed this issue only because the district court, as an alternative holding, was of the view that fee awards to pro bono legal organizations were improper.
. The Supreme Court has recognized the government's unique position as litigator. In ruling that nonmutual collateral estoppel was unavailable against the government, the Court stated that preventing the government from seeking different rulings on the same issues in different circuits
would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari.
United States v. Mendoza, - U.S. -, 104 S.Ct. 568, 572, 78 L.Ed.2d 379 (1984).
Therefore, merely because the issues had been decided adversely to the Secretary in other circuits does not necessarily make her position on these same issues in our court unreasonable.