Mccarthy v. Bowen, 824 F.2d 182 (2d Cir. 1987). · Go Syfert
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Mccarthy v. Bowen, 824 F.2d 182 (2d Cir. 1987). Cases Citing This Book View Copy Cite
21 citation events (15 in the last 25 years) across 7 distinct courts.
Strongest positive: Schwebel v. Richardson (nysd, 2021-06-03)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Statutes interpreted (leading-cases list)
#5 45 C.F.R. § 233.20(a)(3) cited 1× in this case · 11 total citations of statute
Top citers, strongest first. 11 distinct citers. How cited ↗
cited Cited as authority (rule) Schwebel v. Richardson
S.D.N.Y. · 2021 · confidence medium
McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir. 1987) (per curiam).
discussed Cited as authority (rule) Discover Bank v. Warren (In re Warren)
Bankr. D.S.C. · 2014 · confidence medium
Compare Garcia v. Schweiker, 829 F.2d 396, 398 (3d Cir.1987) (holding determination of fees for appellate work should be done by the district court in the first instance), with Orn v. Astrue, 511 F.3d 1217, 1220 (9th Cir.2008) ("Taken as a whole, our rules recognize the propriety of this court considering a request for EAJA attorney’s fees and costs in the first instance.”); McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir.1987) ("An application for appellate fees under EAJA should therefore always be presented to the court of appeals.”).
discussed Cited as authority (rule) Hollis v. O'Driscoll
2d Cir. · 2014 · signal: cf. · confidence medium
See Ozaltin, 708 F.3d at 377 (“[T]he District Court is in a better position to assess ... an appropriate fees award.”); cf. McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir.1987) (holding, in the context of the Equal Access to Justice Act, 28 U.S.C. § 2412 (1987), that, although the application for appellate fees must be made in the Court of Appeals, “[tjhere may be situations where the court of appeals will find it helpful to enlist the aid of the district court in resolving disputed issues concerning an application for appellate fees”). 8 Accordingly, we remand the cause for considerati…
discussed Cited as authority (rule) Impresa Construzioni Geom. Domenico Garufi v. United States
Fed. Cl. · 2011 · confidence medium
Although some courts of appeals have stated that the appellate court is the “appropriate court” for a plaintiff to bring an EAJA application for fees for an "attorney’s services rendered in connection with an appeal,” see McCarthy v. Bowen, 824 F.2d 182, 183 (1987), other courts have treated cases as a whole, see Curtis v. Brown (Brown), 8 Vet.App. 104, 108 (1995) (relying on Comm'r, I.N.S. v. Jean (Jean), 496 U.S. 154, 166 , 110 S.Ct. 2316 , 110 L.Ed.2d 134 (1990), and finding that appellant could recover fees for successfully defending its EAJA application on appeal).
cited Cited as authority (rule) Burger v. Astrue
2d Cir. · 2010 · confidence medium
McCarthy v. Bowen, 824 F.2d 182, 184 (2d Cir.1987).
discussed Cited as authority (rule) Orn v. Astrue
9th Cir. · 2008 · confidence medium
Group v. Adams, 657 F.2d 1118 , 1126 (9th Cir. 1981) (considering whether plaintiffs were entitled under § 1988 to costs and attorney’s fees expended in making the appeal); Perkins v. Standard Oil Co., 474 F.2d 549 , 551 n.2 (9th Cir. 1973), vacated on other 202 ORN v. ASTRUE grounds, 399 U.S. 222 (1970) (per curiam) (noting that previ- ously in the litigation the Ninth Circuit Court of Appeals had awarded fees under the Clayton Act for earlier appeals, and that those fees were not at issue in the appeal at hand); id. at 555 (awarding Perkins $1500 “for the services of his attor- neys on …
discussed Cited as authority (rule) Orn v. Astrue
9th Cir. · 2008 · confidence medium
Group v. Adams, 657 F.2d 1118 , 1126 (9th Cir.1981) (considering whether plaintiffs were entitled under § 1988 to costs and attorney’s fees expended in making the appeal); Perkins v. Standard Oil Co., 474 F.2d 549 , 551 n. 2 (9th Cir.1973), vacated on other grounds, 399 U.S. 222 , 90 S.Ct. 1989 , 26 L.Ed.2d 534 (1970) (per curiam) (noting that previously in the litigation the Ninth Circuit Court of Appeals had awarded fees under the Clayton Act for earlier appeals, and that those fees were not at issue in the appeal at hand); id. at 555 (awarding Perkins $1500 “for the services of his att…
discussed Cited as authority (rule) Ernest Dague, Sr., Ernest Dague, Jr., Betty Dague, and Rose A. Bessette v. City of Burlington
2d Cir. · 1992 · confidence medium
See Smith v. Bowen, 867 F.2d 731, 736 (2d Cir.1989) (“[ajpplications [under the EAJA] for appellate fees in this Circuit should be filed directly with the Court of Appeals”); McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir.1987) (per curiam) (directing the filing of EAJA appellate fee applications in court of appeals so that it may determine whether to enlist the aid of the district court in resolving disputed issues).
discussed Cited "see" Wasniewski v. Grzelak-Johannsen
N.D. Ohio · 2008 · signal: see · confidence high
See McCarthy v. Bowen, 824 F.2d 182, 183 (2nd Cir.1987); Orn v. Astrue, 511 F.3d 1217, 1218-21 (9th Cir.2008). 9 It would be improper for the dis trict court to resolve the question in the first instance whether the fees incurred for work on appeal were necessarily related to the return of the child for purposes of Travel $ 757.44 Color Copies 181.00 Cornier service 72.56 Long distance tolls 68.74 Court costs 450.00 Meals 1,048.77 Office copy/scan 681.00 Totaling: (See Motion for Attorney Fees and Costs, Billing statement, Ex. 1 p. 23, ECF # 100-2).
cited Cited "see" Nathaniel Keon Smith, by His Mother and Next Friend Sanova Smith v. Otis Bowen, Secretary of Health and Human Services
2d Cir. · 1989 · signal: see · confidence high
See McCarthy v. Bowen, 824 F.2d 182 (2d Cir.1987).
discussed Cited "see, e.g." Bice v. United States (2×)
Fed. Cl. · 2008 · signal: see also · confidence medium
Courts entertaining EAJA Applications for the award of fees associated with both the trial and appellate phases of a case have concluded that “the appropriate court for resolution of an EAJA attorney’s fees petition is the court before which the attorney performed the work sought to be recompensed.” Washington v. Heckler, 608 F.Supp. 1286, 1288 (E.D.Pa.1985) (Washing ton,); see also McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir.1987) (“An application for appellate fees under EAJA should [ ] always be presented to the court of appeals.”); United States v. Estridge, 797 F.2d 1454, 1459-…
Retrieving the full opinion text from the archive…
Patricia McCarthy Latrenda Braswell, on Their Own Behalf and on Behalf of All Those Similarly Situated
v.
Otis R. Bowen, M.D., Secretary, U.S. Department of Health and Human Services, Stephen Heintz, Commissioner, Connecticut Department of Income Maintenance
86-6121.
Court of Appeals for the Second Circuit.
Jul 15, 1987.
824 F.2d 182
Cited by 3 opinions  |  Published

824 F.2d 182

Patricia McCARTHY, Latrenda Braswell, on their own behalf
and on behalf of all those similarly situated,
Plaintiffs-Appellees,
v.
Otis R. BOWEN, M.D., Secretary, U.S. Department of Health
and Human Services, Defendant-Appellant,
Stephen Heintz, Commissioner, Connecticut Department of
Income Maintenance, Defendant.

Docket No. 86-6121.

United States Court of Appeals,
Second Circuit.

Submitted May 5, 1987.
Decided July 15, 1987.

Nancy S. Nemon, Deputy Chief Counsel, Dept. of Health and Human Services, Boston, Mass., submitted a brief for defendant-appellant.

Judith I. Solomon, Legal Aid Society of Hartford County, Inc., Hartford, Conn., submitted a brief for plaintiffs-appellees.

Before OAKES, NEWMAN, and PIERCE, Circuit Judges.

PER CURIAM:

1

This is a motion by plaintiffs-appellees for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.A. Sec. 2412(d)(1)(A) (West Supp.1987), for fees incurred in connection with an appeal by the defendant-appellant Secretary of Health and Human Services. The suit challenged the Secretary's regulatory interpretation, 45 C.F.R. Sec. 233.20(a)(3)(xviii) (1987), and the State defendant's implementation of 42 U.S.C. Sec. 602(a)(39) (Supp. III 1985), which established a so-called "grandparent-deeming" requirement for three-generation families in the AFDC program. Plaintiffs obtained a favorable judgment in the District Court for the District of Connecticut (M. Joseph Blumenfeld, Judge). The Secretary appealed but subsequently chose to discontinue the appeal in light of new legislation believed to moot the appeal. See Pub.L. No. 99-514, Sec. 1883(b)(3), 100 Stat. 2085, 2917 (1986). The parties entered into a stipulation for voluntary dismissal of the appeal with each party bearing its own costs. This Court approved the stipulation. Thereafter, plaintiffs filed applications for attorney's fees under the EAJA with both the District Court and this Court.

2

Initially we must determine whether the request for EAJA appellate fees should be considered in the first instance by this Court or by the District Court. Under EAJA "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) ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C.A. Sec. 2412(d)(1)(A). When fees are sought for attorney's services rendered in connection with an appeal, the court of appeals is the appropriate court to determine whether the position of the United States was "substantially justified" or whether "special circumstances make an award unjust." An application for appellate fees under EAJA should therefore always be presented to the court of appeals. See United States v. Estridge, 797 F.2d 1454, 1458-60 (8th Cir.1986); Martin v. Heckler, 754 F.2d 1262, 1265 n. 6 (5th Cir.1985); Washington v. Heckler, 608 F.Supp. 1286, 1288 (E.D.Pa.1985). There may be situations where the court of appeals will find it helpful to enlist the aid of the district court in resolving disputed issues concerning an application for appellate fees, but the application should always be filed with the court of appeals so that the appellate court may determine whether district court assistance is required.

3

In this case, though the plaintiffs-appellees' application was correctly filed with this Court, we will defer consideration of it until the District Court determines whether the plaintiffs are entitled to EAJA fees in connection with proceedings in the District Court. Whether the Government's position was "substantially justified" in each court may not necessarily be resolved with the same outcome, but our deferral will afford us the benefit of the District Court's view on the issue it must resolve. Deferral will also conserve judicial resources. Consideration of appellate fees can be combined with any appeal that may be taken from the EAJA ruling of the District Court. Alternatively, there is always the possibility that the ruling of the District Court will prompt the parties to accept it without appeal and also to settle the application for appellate fees.

4

Accordingly, the appellees' motion is denied, without prejudice to renewal within thirty days after a ruling by the District Court on the EAJA application pending before it.