PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1021
_____________
JOHN D. HANDRON, Ph. D.,
Appellant
v.
SECRETARY DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
c/o General Counsel Dept of Health
and Human Services
_____________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-08-cv-03119)
District Judge: Honorable Robert B. Kugler
_____________
Argued January 11, 2012
Before: SCIRICA, RENDELL and SMITH, Circuit Judges
(Opinion Filed: April 20, 2012)
_____________
John D. Handron, Ph. D.
21 Shadow Lane
Cape May Courthouse, NJ 08210
Pro se Appellant
James B. Clark, III. Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Rachel H. Park, Esq. [ARGUED]
U.S. Department of Health
& Human Services
Office of General Counsel
26 Federal Plaza
New York, NY 10278
Counsel for Appellee
David M. Laigaie, Esq. [ARGUED]
Dilworth Paxson
1500 Market Street, Suite 3500E
Philadelphia, PA 19102
Counsel for Amicus Appellant
Court Appointed Amicus Curiae
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
Dr. John Handron, a psychologist, appeals from the
denial of his request for counsel fees following his challenge
2
to the government’s claim that he had overbilled Medicare
and owed the government more than $600,000 in
overpayments. At an ALJ hearing to contest the
government’s claim, Dr. Handron presented extensive
evidence, but the government neither appeared nor presented
argument or advocacy, either written or in person. The ALJ
concluded that the overpayment was actually $5,434.48. Dr.
Handron then moved, pursuant to the Equal Access to Justice
Act (“EAJA”), 5 U.S.C. § 504(a)(1), to recoup the tens of
thousands of dollars in attorneys’ fees and expenses he
incurred in fighting the overpayment demand. His request for
fees was denied by an administrative appeals council and the
District Court based on their conclusion that the hearing
before the ALJ was not an “adversary adjudication,” as is
required for an award of fees under the EAJA.
While we sympathize with Dr. Handron’s plight, we
are constrained to agree with the determination that, given the
statutory definition of an “adversary adjudication,” his
request was properly denied. At the same time, we disagree
with the District Court’s ruling that the mere fact that the
government did not appear in person at the hearing was a
sufficient basis upon which to conclude that the adjudication
was not adversary in nature.
I.
a. The EAJA
The EAJA was passed, in large part, to allow
individuals and small businesses to fight back against
unjustified government action, without fear that the high cost
of doing so would make victory ultimately more expensive
than acquiescence. H.R. Rep. No. 96-1418, at 5-6 (1980),
3
reprinted in 1980 U.S.C.C.A.N. 4984; John J. Sullivan, Note,
The Equal Access to Justice Act in the Federal Courts, 84
Colum. L. Rev. 1089, 1092-93 (1984). It empowers parties
who prevail against the government, either in an
administrative proceeding or in a civil action, to collect their
fees and other expenses from the government. 5 U.S.C. §
504(a)(1)1; 28 U.S.C. § 2412(d)(1)(A)2. However, Congress
1
That sub-section reads, in relevant part, as follows:
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).
2
That sub-section provides:
[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 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).
4
placed several limitations on a party’s ability to recover fees
under the EAJA. Relevant here, parties who prevail against
the government in an agency proceeding can only collect their
fees under the EAJA if the proceeding was an “adversary
adjudication.” 5 U.S.C. § 504(a)(1). An “adversary
adjudication” is defined, in relevant part, as “an adjudication
under section 554 of [Title 5, United States Code] in which
the position of the United States is represented by counsel or
otherwise, but excludes an adjudication for the purpose of
establishing or fixing a rate or for the purpose of granting or
renewing a license.” 5 U.S.C. § 504(b)(1)(C).
The House Report for the bill makes clear that the
adversary adjudication requirement was designed, in part, to
“narrow the scope of the bill in order to make its costs
acceptable.” H.R. Rep. No. 96-1418, at 14, reprinted in 1980
U.S.C.C.A.N. 4984, 4993; see also id. at 20, reprinted in
1980 U.S.C.C.A.N. 4984, 4999 (“[T]he Committee has
eliminated non-adversary adjudications (including
administrative proceedings under the Social Security Act)
from the coverage of the principal part of this bill, and
believes that is a significant factor in reducing the cost.”).
That report also commented that “[i]t is basic fairness that the
United States not be liable in an administrative proceeding in
which its interests are not represented.” Id. at 12, reprinted in
1980 U.S.C.C.A.N. 4984, 4991. The Conference Report for
the bill stated that the definition of “adversary adjudication”
was intended to “preclude[] an award in a situation where an
agency, e.g., the Social Security Administration, does not take
a position in the adjudication.” H.R. Conf. Rep. 96-1434, at
23 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5012.
5
In 1985, when Congress reauthorized3 and amended
the EAJA, it reaffirmed the adversary adjudication
requirement. The House report noted the following:
One issue which needs clarification is what
coverage, if any, is allowed under the Equal
Access to Justice Act for Social Security
Administration hearings at the administrative
level. As enacted in 1980, the Act covers
“adversary adjudications”—i.e., an adjudication
under Section 554 of Title 5, United States
Code “in which the position of the United
States is represented by counsel or otherwise.”
While this language 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). While, generally,
Social Security administrative hearings remain
outside the scope of this statute, those in which
3
The EAJA as originally passed included a sunset provision.
In 1985, Congress repealed the sunset provision and made the
EAJA permanent. See H.R. Rep. No. 99-120, at 20-21, 29
(1985), reprinted in 1985 U.S.C.C.A.N. 132, 149.
6
the Secretary is represented are covered by the
Act.
H.R. Rep. No. 99-120, at 10 (1985), reprinted in 1985
U.S.C.C.A.N. 132, 138-39 (quoting H.R. Conf. Rep. 96-1434,
at 23, reprinted in 1980 U.S.C.C.A.N. 5003, 5012) (emphasis
and ellipsis in original).
The EAJA also tasked the Administrative Conference
of the United States with interpreting the statute and
developing model rules. See Scafar Contracting, Inc. v. Sec’y
of Labor, 325 F.3d 422, 428 n.4 (3d Cir. 2003); 5 U.S.C. §
504(c)(1) (“After consultation with the Chairman of the
Administrative Conference of the United States, each agency
shall by rule establish uniform procedures for the submission
and consideration of applications for an award of fees and
other expenses.”). The Administrative Conference’s model
rule implementing 5 U.S.C. § 504 states that an agency
proceeding is an “adversary adjudication” under the EAJA if
“the position of this or any other agency of the United States,
or any component of any 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
(June 25, 1981). The Department of Health and Human
Services (“HHS”) adopted that model rule in substantially
similar form when it promulgated regulations. 45 C.F.R. §
13.3(a).4
4
That provision reads as follows:
These rules apply only to adversary
adjudications. For the purpose of these rules,
only an adjudication required to be under 5
U.S.C. 554, in which the position of the
7
HHS has also adopted regulations defining when the
government—through the Centers for Medicare and Medicaid
Services (“CMS”) or one of its contractors—may participate
in an ALJ hearing. Participation is specifically defined and
“may include filing position papers or providing testimony to
clarify factual or policy issues in a case.” 42 C.F.R. §
405.1010(c). The regulations permit the ALJ to “request”
such participation, but the ALJ “may not require” it. Id. §
405.1010(a). Even if CMS or its contractors do participate,
they may not be called as witnesses during the hearing. Id. §
405.1010(d).
b. Dr. Handron’s case
Dr. Handron participated in the Medicare Part B
program, treating nursing home patients and receiving
reimbursement payments from Medicare. In August 2003, he
received a letter from Empire Medicare Services, on CMS
letterhead, informing him that he had been overpaid from the
Medicare program in the amount of $604,038. The letter
Department or one of its components is
represented by an attorney or other
representative (“the agency’s litigating party”)
who enters an appearance and participates in the
proceeding, constitutes an adversary
adjudication. These rules do not apply to
proceedings for the purpose of establishing or
fixing a rate or for the purpose of granting,
denying, or renewing a license.
45 C.F.R. § 13.3(a).
8
stated that the “overpayment occurred because documentation
did not support the services billed.” (A100.)
The letter was sent after an extensive review of Dr.
Handron’s requests for reimbursement from Medicare. Jana
Clark, a nurse working for Eastern Benefits Integrity Center
(“EA-BISC”), a government contractor, reviewed a sample of
Dr. Handron’s Medicare claims from November 1994 to
January 2001 to determine whether payments made to him
were appropriate given the documents supporting his bills.
Clark prepared a 64-page spreadsheet listing the more than
2,500 claims she reviewed. She assigned each claim one or
more of fourteen codes, each of which represented a decision
either to allow or deny a claim, along with a brief explanation
of the reason for denial. Clark explained the codes’ meaning
in a two-page printed legend. EA-BISC determined from this
audit that Medicare overpaid Dr. Handron by $125,696.71 for
the claims Clark reviewed. It was extrapolated from that
sample that Medicare had overpaid Dr. Handron by a total of
$604,038 over his entire claims history.
Dr. Handron hired a lawyer and challenged the
government’s accusation. He first filed an administrative
appeal, and a Fair Hearing Officer largely upheld the
government’s overpayment determination. He then requested
a hearing before an ALJ pursuant to 42 C.F.R. § 405.1002(a),
which took place on June 21-22 and July 24, 2007. Dr.
Handron appeared at this hearing along with his attorney, and
he testified on his own behalf. Dr. Handron also presented
expert testimony from Christopher Barbrack, a psychologist,
concerning the provision and documentation of psychological
services. The ALJ requested that CMS or one of its
contractors appear as a non-party participant in the hearing,
but no one filed a brief or sent a representative to the hearing
9
on behalf of the government. CMS did, however, provide the
ALJ with documents he requested to explain the procedure its
consultants used to sample Dr. Handron’s claims and
extrapolate findings therefrom.
The ALJ reviewed Clark’s spreadsheet and legend,
which detailed the claims that EA-BISC reviewed and
explained the reasons EA-BISC felt the claims should be
disallowed. Also before the ALJ were twenty-five boxes of
medical records from Dr. Handron’s treatment of Medicare
patients.
The ALJ slashed the government’s overpayment
request, determining that the overpayment to Dr. Handron
was actually only $5,434.48. He found that EA-BISC failed
to meet its burden of establishing an overpayment as to some
of the claims and that some of the claims were outside of the
limitations period for an overpayment action. He then
examined each of Clark’s fourteen codes and analyzed
whether EA-BISC had met its burden of showing that each
claim in its sample should be disallowed. Of the $125,696.71
of supposed overpayments that EA-BISC found in the sample
claims, the ALJ found that only $5,434.48 was properly
deemed overpayment. As to EA-BISC’s “extrapolation”
from the claims sample it reviewed, the ALJ sought input
from an expert statistician, who concluded that the sampling
was skewed against Dr. Handron in a way that exaggerated
the extent of any overpayment indicated by the sample.
Accordingly, the ALJ held that “the sampling procedures
followed by EA-BISC in this case were unreliable and that
the resultant extrapolation is invalid.” (A80.) Therefore, the
ALJ held that only the $5,434.48 of overpayment he found
warranted in EA-BISC’s sample of claims could be charged
to Dr. Handron.
10
Dr. Handron thereafter filed an application pursuant to
the EAJA, 5 U.S.C. § 504, to collect from HHS the attorneys’
fees and expenses he incurred in presenting his case against
the overcharge claim. The ALJ denied this application,
holding that the position of the government was not
represented at the hearing and that, therefore, Dr. Handron
did not qualify for fee reimbursement under the EAJA. Dr.
Handron appealed the ALJ’s decision regarding fees to
HHS’s Medicare Appeal Council (“MAC”), which adopted
the ALJ’s decision denying an EAJA fee award.
In June 2008, Dr. Handron filed a complaint in the
District Court for the District of New Jersey appealing
MAC’s decision disallowing EAJA fees. He moved for
summary judgment in March 2009. The District Court denied
Dr. Handron’s motion and affirmed MAC’s denial of EAJA
fees. Handron v. Sebelius, 669 F. Supp. 2d 490, 501 (D.N.J.
2009).
Recognizing that the government’s position was not
represented at the ALJ hearing “by counsel,” the District
Court examined the meaning of the words “or otherwise” in
the EAJA’s definition of an adversary adjudication, 5 U.S.C.
§ 504(b)(1)(C), and found the statutory language ambiguous.
669 F. Supp. 2d at 495. The District Court then looked to the
statute’s legislative history and concluded that “Congress did
not intend that the EAJA would apply simply because a
person was fighting adverse government action[;] rather[,]
Congress only intended that the EAJA would apply when the
government participated in the proceeding.” Id. at 496. The
District Court examined out-of-circuit case law and found
that it supported the position that a person representing the
government must physically appear at the hearing for it to
constitute an adversary adjudication under the EAJA. Id. at
11
497-99. The District Court found further support for its
conclusion in the Administrative Conference’s model rules,
which state that a proceeding is adversarial if a government
representative enters an appearance and participates in the
proceeding. Id. at 499-500 (citing 46 Fed. Reg. 32,900,
32,912). Finally, the District Court reviewed the statute and
concluded that “[t]he word ‘represented’ in [the] context of
being coupled with ‘by counsel’ suggests that the statute
requires some level of advocacy.” Id. at 500. The District
Court then stated that “[a]dvocacy, in turn, in the context of a
live adjudication seems to impart some modicum of real-time
interplay with the fact-finder.” Id. Since the government did
not send someone to physically represent it at Dr. Handron’s
ALJ hearing, the District Court concluded that the EAJA did
not apply to his case. It therefore denied Dr. Handron’s
motion for summary judgment and dismissed his case.
Dr. Handron appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1291. Our review of the District Court’s
interpretation of the EAJA is plenary. Kadelski v. Sullivan,
30 F.3d 399, 400 (3d Cir. 1994).
II.
a.
We begin by asking whether the District Court was
correct in concluding that an agency hearing is not an
“adversary adjudication” under the EAJA unless an individual
representing the government appears at the proceeding in
person. We believe this is a misreading of the statute.
Nothing in the plain text of the statute supports the
specific meaning that the District Court and the government
attribute to the words “represented by counsel or otherwise”
in 5 U.S.C. § 504(b)(1)(C). To “represent” means to “stand[]
12
for or act[] on behalf of another, esp. by a lawyer on behalf of
a client.” Black’s Law Dictionary 1416 (9th ed. 2009). And
“otherwise” is an open-ended term, meaning “in a different
way or manner.” Begay v. United States, 553 U.S. 137, 144
(2008) (citing Webster’s Third New International Dictionary
1598 (1961)); id. at 151 (Scalia, J., concurring) (citing
Webster’s New International Dictionary 1729 (2d ed. 1957)).
Congress did not specify in what way or manner the position
of the United States could be represented, other than by
counsel, and still implicate the EAJA.
If Congress wanted to limit the EAJA’s applicability to
cases in which an individual representing the government
physically appeared at an agency proceeding, it could have so
stated. The statute does not say that the government’s
position must be represented “by counsel or other individual
appearing on its behalf.” Such language would indicate the
necessity of the actual presence at the hearing of someone
representing the government, but that was not the language
Congress chose.
Instead, Congress chose language that left open the
possibility that the government’s position could be
represented in some other manner and by someone other than
a lawyer. This indicates Congress’s recognition that the
position of the United States can be represented in many ways
and its desire to grant judges some discretion in determining
whether particular action “represents” the government’s
position. It does not suggest that the government’s position
can only be represented at a hearing if a government
representative physically stands before the decision-maker.
Moreover, the fact that the statute speaks of the government’s
position being represented, rather than the government itself,
further suggests that a physical appearance at an agency
13
hearing is not necessary to implicate the EAJA. While we
speak of people being represented as meaning that they have
advocates acting on their behalf, “[t]o represent a thing is to
produce it publicly.” Black’s Law Dictionary 1301 (6th ed.
1990). That production can be as part of a public record, and
need not be in person.
Accordingly, we have little doubt that some forms of
written advocacy submitted to an ALJ can constitute a
representation of the government’s position, so as to make an
agency proceeding an “adversary adjudication” for purposes
of the EAJA. A written statement is often an effective way to
advocate one’s position. We frequently decide cases in which
the parties’ respective positions are represented solely by
written submissions. See 3d Cir. L.A.R. 34.1(a) (2011).
While the appearance of an individual at a hearing will raise
the level of advocacy for a given position, this does not mean
that a position cannot be represented at a proceeding unless
an individual is there to espouse the position.
The government argues that the out-of-circuit case law
on which the District Court relied refutes the argument that
the position of the government can be represented by a
writing. We disagree. The government cites to Willis v.
Sullivan, 931 F.2d 390 (6th Cir. 1991) and Rowell v. Sullivan,
813 F. Supp. 78 (D.D.C. 1993). Neither case stands for the
broad proposition the government claims.
In Willis, a plaintiff argued that her disability
proceedings were adversarial because the HHS Secretary’s
counsel “responded by letter denying her request for answers
to interrogatories and motions to produce” such that “the
Secretary, in essence, was represented by counsel during the
administrative proceedings on her disability claim.” 931 F.2d
at 400. The Sixth Circuit Court of Appeals rejected that
14
argument, saying that the government’s letter refusing to give
substantive responses to the plaintiff’s discovery requests
“[did] not amount to the Secretary taking a position
represented by counsel during the administrative phase of
Willis’ disability claim.” Id. This was not a rejection of the
principle that a writing could serve to represent the
government’s position. Rather, it was a straightforward
recognition that a written refusal to respond substantively to
discovery requests is not a representation of the government’s
position in the underlying matter sufficient to invoke the
EAJA.
Similarly, Rowell does not support the government’s
sweeping position that the position of the United States can
never be represented by a writing. In that case, an ALJ,
Rowell, was under investigation by an HHS panel for
potential bias. 813 F. Supp. at 79. Rowell wrote to the panel
that was investigating him and requested that sanctions be
levied against certain attorneys—a matter distinct from the
panel’s investigation. Id. at 81. An HHS attorney replied in
writing to Rowell’s request. Id. Rowell later pointed to this
letter as an indication that the panel proceeding was an
adversary adjudication and that he was entitled to attorneys’
fees under the EAJA. Id. The district court rejected this
argument, saying that the HHS attorneys’ letter simply
informed Rowell that the agency would not initiate the
ancillary sanction proceedings Rowell requested, and that this
did not constitute representation of the agency’s position in
the panel investigation of Rowell’s alleged bias. Id. This was
not a sweeping proclamation that a writing can never
represent the government’s position, but, rather, was another
example in which a writing was not sufficient to constitute a
representation of the government’s position.
15
The government urges that we should defer to the rule
that HHS has adopted, which dictates that an administrative
proceeding is not an adversary adjudication unless a
representative of the government enters an appearance and
participates in the proceeding. We have said that the
Administrative Conference’s model rules related to the
EAJA—upon which HHS’s rule is modeled—are entitled to
“some deference.” Scafar, 325 F.3d at 428 n.4. However, we
have never said that we give the model rules the kind of
strong deference described in Chevron U.S.A., Inc. v. Natural
Resources Defense Counsel, Inc., 467 U.S. 837 (1984).
Instead, we have only stated that the Administrative
Conference’s model rules are entitled to some deference
under the principles of Skidmore v. Swift & Co., pursuant to
which an agency’s regulations are “not controlling upon the
courts . . . [but] do constitute a body of experience and
informed judgment to which courts and litigants may properly
resort for guidance.” 323 U.S. 134, 140 (1944). Exercising
Skidmore deference, a court gives the agency action weight
according to “the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it
power to persuade, if lacking power to control.” Id.
The Administrative Conference gave no explanation
whatsoever as to why it interpreted the statutory language
“represented by counsel or otherwise” to mean that an
individual must enter an appearance and participate in the
proceeding. 46 Fed. Reg. 32,900, 32,912; see Handron, 669
F. Supp. 2d at 499 (recognizing that the Administrative
Conference gave scant attention to the meaning of “or
otherwise”). To the extent that the Administrative
Conference’s model rule can be interpreted to require a
representative of the government to physically appear at the
16
hearing, the reason for that interpretation was not explained, it
has no inherent persuasive power, and it thus is entitled to no
deference under Skidmore.5 Therefore, we find the
government’s argument unavailing.
In sum, we disagree with the District Court’s
conclusion that a human presence at the agency hearing is
necessary for the government’s position to be represented
therein. We believe that a writing can represent the
government’s position and therefore bring a proceeding under
the ambit of the EAJA.
b.
Having concluded that a writing can, in certain
instances, render an administrative hearing an adversary
adjudication under the EAJA, we now ask whether the written
materials to which Dr. Handron points—the demand letter,
the Fair Hearing Officer’s decision, the boxes of medical
records, and Nurse Clark’s spreadsheet and legend—rendered
his ALJ hearing an adversary adjudication under 5 U.S.C. §
504. We find that they do not.
5
HHS’s rule does not, on its face, require that an individual
physically appear at the proceeding for it to be considered an
adversary adjudication. It only requires that the agency’s
position be represented by an attorney or other representative
who enters an appearance and participates in the proceeding.
45 C.F.R. § 13.3(a). We pause to note the inconsistency
between a requirement that the government have a physical
presence at the hearing in order for its position to be
represented and the agency’s own regulations, which define
“participation” in a proceeding to include the filing of written
position papers. 42 C.F.R. § 405.1010(c).
17
Congress defined an “adversary adjudication” as
requiring that “the position of the United States [be]
represented by counsel or otherwise.” 5 U.S.C. §
504(b)(1)(C). In determining the meaning of the words “or
otherwise,” we are aided by principles of statutory
interpretation. The interpretive canon of ejusdem generis
“limits general terms which follow specific ones to matters
similar to those specified.” Gooch v. United States, 297 U.S.
124, 128 (1936); see also United States v. Winebarger, 664
F.3d 388, 394 (3d Cir. 2011) (applying canon of ejusdem
generis). Similarly, under the maxim noscitur a socciis, the
meaning of a word is informed by the words that accompany
it in the statute. Singh v. Ashcroft, 383 F.3d 144, 164 & n.14
(3d Cir. 2004). Following these principles, we must read
“otherwise” to mean that the government’s position is
represented in a manner akin to the representation counsel
would provide. See Pollgreen v. Morris, 911 F.2d 527, 533
(11th Cir. 1990) (reading “otherwise” in the context of §
504(b)(1)(C) to require representation akin to that provided
by counsel).6 This involves a minimum level of purposeful
6
The Pollgreen court stated that “[t]he word ‘otherwise’ is
more appropriately read in the context of the entire clause to
refer to an individual who represents the position of the
United States in a manner similar to that of counsel.” 911
F.2d at 533. That court confronted an argument that a
government investigator who initiated an administrative
process had represented the government’s position. Id. It did
not deal with the question we face here, whether a writing can
represent the government’s position at a hearing and thereby
make the proceeding adversarial. We therefore believe that
the Pollgreen court’s reference to an “individual” was not a
statement that such individual must personally appear at a
18
advocacy of a legal position directed at the decision-maker.
Like the writings in Willis and Rowell, the writings to which
Dr. Handron points do not reflect that kind of purposeful
advocacy and therefore do not implicate the EAJA. Willis,
931 F.2d at 400 (holding that the government’s written
response to Willis “[did] not amount to the Secretary taking a
position represented by counsel during the administrative
phase of Willis’ disability claim”); Rowell, 813 F. Supp. at 81
(holding that government writing did not represent the
government’s position). Here, the government did not take
any action to advocate for, or urge, its position before the
ALJ. It filed no brief, gave no statement, and expressed no
position, in writing or in person.
Of course, the government’s position—that Dr.
Handron had been overpaid hundreds of thousands of
dollars—was put before the ALJ in this case, but that does not
mean that it was “represented” at the hearing in a manner akin
to the representation counsel would provide. Whenever there
is an administrative proceeding of this sort, it will be because
the government took some kind of position, like denying
disability benefits to an individual or determining that excess
benefits have been paid to a beneficiary. The fact that the
government previously took a position (and committed it to
writing) cannot mean that any time such position is appealed,
the subsequent proceeding implicates the EAJA merely
because the writing is presented to the ALJ. Surely, the
“adjudication” in connection with which the position must be
represented is the actual § 554 proceeding.
hearing for it to be an adversary adjudication or that the
government’s position cannot be represented by a writing.
19
While it may seem strange to make eligibility for fee
reimbursement contingent on whether or not the government
decides to urge its position, this was clearly the result
Congress intended in order to give the government some
control over its costs. The EAJA’s legislative history
indicates that, though Congress was concerned with evening
the playing field for those who might not otherwise be able to
fight unjustified government action, it was also concerned
about the public fisc. It limited the EAJA’s applicability in
the administrative context to “adversary adjudication[s]” and
excluded Social Security proceedings in an effort to reduce
the statute’s costs. See H.R. Rep. No. 96-1418, at 14,
reprinted in 1980 U.S.C.C.A.N. 4984, 4993 (noting that part
of the reason the Act “covers only adversary adjudications
under 554 of title 5” is a “desire to narrow the scope of the
bill in order to make its costs acceptable”); id. at 20, reprinted
in 1980 U.S.C.C.A.N. 4984, 4999 (“[T]he Committee has
eliminated non-adversary adjudications (including
administrative proceedings under the Social Security Act)
from the coverage of the principal part of this bill, and
believes that is a significant factor in reducing the cost.”);
H.R. Rep. No. 99-120, at 10, reprinted in 1985 U.S.C.C.A.N.
132, 138-39 (“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.”); see also H.R. Rep. No. 96-1418, at 12,
reprinted in 1980 U.S.C.C.A.N. 4984, 4991 (“It is basic
fairness that the United States not be liable in an
administrative proceeding in which its interests are not
represented.”). This history makes clear that Congress
intended to allow the government to avoid taking a position in
certain administrative proceedings and thereby not subject
itself to possible liability for attorneys’ fees under the EAJA.
20
That is exactly what happened here. The government did not
file a brief with the ALJ, let alone make an appearance to
urge that its position be adopted. While the government did
provide the ALJ with a description of the statistical
methodology it used to arrive at its figure, this did not rise to
the level of purposeful advocacy directed at the decision-
maker that would render Dr. Handron’s hearing an adversary
adjudication under the EAJA. See Pollgreen, 911 F.2d at
533. Therefore, although we disagree with the test the
District Court applied, we agree with its conclusion that Dr.
Handron’s ALJ hearing was not an adversary adjudication
and that he is not entitled to collect his fees under the EAJA.
III.
While we conclude from the statutory language and
legislative history that Dr. Handron’s ALJ proceeding was not
an adversary adjudication, we wonder if, given the context in
which the EAJA was passed, Congress really would intend
this result in today’s world. As noted above, Congress
wanted to make clear that Social Security administrative
proceedings are not adversary adjudications unless the
government is represented at the hearings. H.R. Rep. No. 96-
1418, at 20, reprinted in 1980 U.S.C.C.A.N. 4984, 4999;
H.R. Conf. Rep. 96-1434, at 23, reprinted in 1980
U.S.C.C.A.N. 5003, 5012 (remarking that the definition of
“adversary adjudication” was intended to “preclude[] an
award in a situation where an agency, e.g., the Social Security
Administration, does not take a position in the adjudication”);
H.R. Rep. No. 99-120, at 10, reprinted in 1985 U.S.C.C.A.N.
132, 138-39. Congress has never indicated that overpayment
hearings are to be treated any differently from hearings
concerning Social Security eligibility, leading us to the
conclusion that Dr. Handron’s ALJ hearing—like Social
21
Security hearings in which the government makes no attempt
to advocate its position directly to the decision-maker—does
not fit the statutory definition of adversary adjudication.
However, there are differences between the two types of
hearings. While it seems fair that a Social Security claimant
should have to prove his case, and the government can decide
not to contest it, we wonder if it is equally fair that someone
in Dr. Handron’s position has to essentially disprove the
government’s case, with the government choosing not to put
forth its position. Even though the government’s position
was not “represented” at the hearing, Dr. Handron effectively
had to rebut that position in order to prevail. As Dr. Handron
notes, his case strongly resembles many of the circumstances
that prompted Congress to pass the EAJA. See generally
Award of Attorneys Fees Against the Federal Government:
Hearings Before the Subcommittee on Courts, Civil Liberties
and the Administration of Justice of the Committee on the
Judiciary of the House of Representatives, 96th Cong. (1980)
(Serial No. 62). He was forced to go to great lengths and
incur significant expense to combat a government allegation
that would have been potentially ruinous for him financially.
The fact that the government did not advocate for its position
before the ALJ may have made his challenge slightly easier to
win, but merely by taking the position initially, the
government all but ensured that Dr. Handron would have to
fight tooth and nail—at substantial financial cost—to be
vindicated. To the extent that one of the objectives of the
EAJA was to ensure that private parties are able to fight
unjustified government actions, that objective was implicated
in Dr. Handron’s case.
Although we understand Congress’s desire to control
costs, we do not believe that allowing an individual like Dr.
Handron to satisfy the “adversary adjudication” prong of the
22
EAJA test would open the floodgates to fee awards. The
government’s financial interests are additionally protected by
the statutory scheme that provides that, even if the
government loses in an “adversary adjudication,” it will not
have to pay EAJA fees if it can show that its position was
“substantially justified” or if “special circumstances make an
award unjust.” 5 U.S.C. § 504(a)(1). These statutory
provisions provide additional protection for the government
based on the unique circumstances of the case.
Congress has previously amended the EAJA to
broaden the scope of the EAJA’s application in response to
judicial interpretation of the statute. For instance, after courts
interpreted the “position of the United States” narrowly to
include only the position taken by the government in
litigation, Congress responded by amending the statute to
define that statutory language more broadly. See Act of Aug.
5, 1985, Pub. L. 99-80, § 2(c)(2)(B), 99 Stat. 183 (codified at
28 U.S.C. § 2412(d)(2)(D)); H.R. Rep. No. 99-120, at 11-12,
reprinted in 1985 U.S.C.C.A.N. 132, 139-40 (explicitly
repudiating the holdings in Spencer v. N.L.R.B., 712 F.2d 539
(D.C. Cir. 1983) and Del Mfg’r Co. v. United States, 723 F.2d
980 (D.C. Cir. 1983)).7
7
A parallel provision, enacted in the same bill, broadly
defined the statutory language “position of the agency.” See
Act of Aug. 5, 1985, Pub. L. 99-80, § 1(c)(3), 99 Stat. 183
(codified at 5 U.S.C. § 504(b)(1)(E)). This amendment,
however, offers no comfort to those who are forced to fight
the government in an agency proceeding at which the
government makes no effort to advocate to the decision-
maker in support of its position. Such a circumstance would
still not be considered an adversary adjudication, a
23
Given Congress’s rationale in passing the EAJA, we
wonder whether, with the complex and burdensome battle
that doctors may have to wage in order to vindicate their
rights when accused of overbilling the government, Congress
might consider amending the EAJA so that persons in Dr.
Handron’s position are not disadvantaged by the
government’s decision not to represent its position in
proceedings before ALJs. We leave this policy consideration
to the lawmakers in Washington, should they wish to
entertain it.
IV.
In conclusion, unlike the District Court, we do not
believe that an adversary adjudication under 5 U.S.C. §
504(a)(1) requires the government to send a human being to
the relevant agency proceeding. Rather, we hold that an
adversary adjudication under 5 U.S.C. § 504(a)(1) requires
that the government direct some purposeful advocacy at the
decision-maker, whether written or in person. That
requirement was not met in this case. We will therefore
affirm.
prerequisite to recovery under § 504 that Congress expressly
reaffirmed in 1985. H.R. Rep. No. 99-120, at 10, reprinted in
1985 U.S.C.C.A.N. 132, 138-39.
24