concurring.
I agree with my colleagues that Mr. Hendricks is not entitled to attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), because he did not show that the position of the United States in this case lacks “substantial justification” and therefore join Parts I and II.A of the court’s opinion. I disagree with my colleagues to the extent they conclude that no person whose case was remanded to the Secretary under the Social Security Disability Benefits Reform Act of 1984, 98 Stat. 1794, may recover fees under the EAJA. An award is both appropriate and necessary when the claimant would have prevailed in his quest for benefits, and would have recovered fees, had the Reform Act never existed.
Much can be said for the view that the Reform Act was designed to take tens of thousands of disability cases out of the courts and speed them on their way to a final administrative disposition. Petitions under the EAJA could embroil the courts in some of the disputes that were packed off to another forum. Yet as the majority emphasizes, neither the Reform Act nor its legislative history mentions the EAJA. Repeal by implication thus is implausible, see Traynor v. Tumage, — U.S. -, -, 108 S.Ct. 1372, 1381, 99 L.Ed.2d 618 (1988) — the more so since the EAJA was reenacted after the Reform Act, without anyone’s mentioning that statute. Pub.L. 99-80, 99 Stat. 184 (Aug. 5, 1985). So the EAJA applies to the extent it ordinarily would. The question becomes whether Hendricks is a “prevailing party”.
Hendricks prevailed. He was receiving disability benefits, which the Secretary cut off in March 1983. Had he accepted this decision, benefits would have stayed cut off. Instead Hendricks filed this suit. Because — and only because — he did this, his benefits ultimately were restored, not only for the future but also retroactively. The suit was pending when the Reform Act went into effect on September 19, 1984. The claim was remanded automatically, and Hendricks was given benefits on remand. No suit in 1983, no pending action in September 1984, no benefits. The suit was a necessary condition of the restoration.
Was it a sufficient condition? If the benefits were restored only because of new legal standards in the Reform Act, then the answer is no. This suit did not cause Congress to enact the Reform Act. One or a hundred or even a thousand suits, more or less, would not have affected that legislation. So Hendricks does not recover on the theory that this suit was the “catalyst” for legal change. If the award sprang from new legal standards then Hendricks was a fortuitous beneficiary, and serendipity is not a reason for rewarding lawyers. The EAJA is designed to make whole those who must fight the government in court to secure their legal entitlements. If Hendricks *1260received his legal entitlements in 1983, he gets nothing under the EAJA.
Perhaps, however, Hendricks (or others whose fate is sealed by today’s decision) was entitled to recover under the legal standards that predated the Reform Act— perhaps so clearly entitled to recover that the government’s contrary position was not “substantially justified”. Let us assume that the government’s position in A’s case was not substantially justified, but that A is otherwise just like Hendricks. A incurred substantial legal fees in mid-1983 demonstrating the flaw in the Secretary’s termination of his benefits. He was entitled to their restoration, pronto. Let us suppose, too, that but for the press of business the judge would have granted summary judgment (worth $40,000) to A and added $10,000 in fees under the EAJA. A would get the $40,000, his legal entitlement, and still be able to compensate his attorney in full (to the extent the $75 hourly rate under the EAJA can be called “full” compensation). But the glut of business (much from other disability cases) prevented this. The case was sitting, awaiting judicial attention, on September 19, 1984, and therefore was remanded. A still would receive $40,000, but now he would have to pay his lawyer out of his own pocket, leaving him with only $30,000, or $10,000 short of his legal entitlement. It was to prevent this sort of diminution by unreasonable governmental action that the EAJA was enacted. It was because Congress suspected that many of the terminations of disability benefits had been unreasonable that the Reform Act was enacted. Yet under the court’s approach today, the combination of unreasonable termination of benefits with a legislative remedy leaves the victim out of pocket the fees necessary to receive the treatment that was his due without regard to the remedial legislation.
It is not hard to devise cases more appealing still. Suppose the district judge had written an opinion awarding A both benefits and fees, but withheld releasing the opinion because the Reform Act mooted the case. Truax v. Bowen, 842 F.2d 995 (8th Cir.1988), may have been just such a j;ase, for the majority Jn Truax reported that the district court was “ready to rule in [Truax’s] favor” when the Reform Act went into effect. Suppose the court had remanded the case to the Secretary before the Reform Act, but in making the award of benefits the Secretary invoked that statute. There are many such cases, e.g., Broussard v. Bowen, 828 F.2d 310 (5th Cir.1987); Neff v. Heckler [available on WESTLAW, 1988 WL 21964] (E.D.Pa.1988). Or suppose that before the Reform Act half of the judges in a district decided disability cases about 18 weeks after filing, while the other half took 18 months. The half of the plaintiffs whose cases were decided expeditiously would receive their full benefits and fees, while the other half would (eventually) get their benefits on remand but have to tap these benefits to pay their legal expenses. No interpretation of either the EAJA or the Reform Act makes entitlement to attorneys’ fees turn on how fast the district court decides the case, yet that is a logical consequence of my colleagues’ approach.
What of the case or controversy requirement of Article III? Once the Reform Act came into force, there was no continuing dispute about entitlements under prior law. Hendricks (and others like him) cannot compel courts to decide hypothetical legal questions just to secure attorneys’ fees. See Diamond v. Charles, 476 U.S. 54, 69-71, 106 S.Ct. 1697, 1707-1708, 90 L.Ed.2d 48 (1986), which holds that exposure to awards of fees cannot create a case or controversy. Diamond depended, however, on the fact that the intervenor (who had been socked with fees) was an in-termeddler, one who but for the fees issue was the wrong person to bring or defend the suit. If intermeddlers’ entitlement (or exposure) to attorneys’ fees were sufficient to require adjudication of the merits, the case-or-controversy requirement would be gone. Hendricks and others like him, however, were the right parties to challenge the termination of their own disability benefits. This case therefore is like one filed under 42 U.S.C. § 1983 by a proper plaintiff that becomes moot because the defend*1261ant capitulates. If the plaintiff was otherwise entitled to fees (that is, was going to win anyway), he recovers; if the defendant changed its policies for reasons unrelated to the merit of the suit and the plaintiff had no claim, then no fees are awarded, see Hewitt v. Helms, — U.S. -, 107 S.Ct. 2672, 2677, 96 L.Ed.2d 654 (1987); in either case no one doubts the authority of the court to address so much of the merits as is necessary to determine whether the plaintiff would have won, had the defendant not, by consenting, prevented it. Cf. Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir.1986) (assuming the propriety of this approach); Comment, Civil Rights Attorney’s Fees Awards in Moot Cases, 49 U.Chi.L.Rev. 819 (1982).
Hendricks prevailed. Because the position of the Secretary was substantially justified, all three of us agree, Hendricks is not entitled to fees. Someone like Hendricks whose benefits were terminated unreasonably should recover the costs of putting things right. If the claimant would have prevailed under the law that predated the Reform Act, if the government’s position under that pre-1984 law was unreasonable, and if incurring fees before September 19, 1984, was prudent (which it would not be if counsel did a lot of work even after it became clear that a statute would be passed), the claimant should be made whole. This string of “ifs” will turn away many, but the EAJA is not an automatic loser-pays statute. When the EAJA otherwise would have required the government to pay, though, the creation of a new entitlement in the Reform Act should not make the claimants worse off.