United States Court of Appeals,
Fifth Circuit.
No. 96-20616.
Norma J. SQUIRES-ALLMAN, Plaintiff-Appellee,
v.
John J. CALLAHAN, Acting Commissioner of Social Security, Defendant-Appellant.
July 30, 1997.
Appeal from the United States District Court for the Southern District of Texas.
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The Commissioner of Social Security appeals an award of attorney's fees to Norma J. Squires-
Allman. The Commissioner contends that Allman was not a prevailing party in the underlying
litigation, and therefore is not entitled to collect attorney's fees under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). Although Allman was granted certain prospective benefits on a
remand from the district court, we agree that Allman was not a prevailing party for the purposes of
the EAJA. We therefore reverse the award of fees.
I
Allman filed an application for Supplemental Security Income ("SSI") on September 26, 1990,
contending that she has become disabled beginning in February 1989. Her application was denied
in April 1991, and she was again denied benefits after a rehearing in November 1991. These
determinations did not identify whether Allman was capable of performing light, medium, or
strenuous work. Instead, they simply stated that her medical "condition [was] not severe enough to
keep [her] from working."
After the administrative determination, Allman filed a hearing request on March 9, 1992, well
after the sixty-day deadline for such requests had passed. An administrative law judge ("ALJ")
dismissed this request after finding that there was no good cause to excuse Allman's tardy filing.
Thereafter, Allman filed a complaint in the district court, maintaining that this dismissal of her request
for a hearing violated her right to due process. Before the district court ruled on this complaint,
however, the Commissioner moved to remand the case to the agency for further proceedings. The
district court granted this unopposed motion.
On remand, an ALJ found that Allman was capable of performing a level of "medium" work
activity. Based on this finding, Allman was again denied benefits. On appeal, however, the Appeals
Council reversed the ALJ on this point and held in an April 10, 1996 ruling, that she only had the
capacity to do "light" work. This determination had the effect of rendering Allman legally disabled
as of November 1992, because on that date she had reached her 55th birthday, thereby qualifying
under Social Security regulations as a claimant entitled to benefits. The Appeals Council, however,
expressly found that she was not entitled to benefits for any time before November 1992.
Contending that she was the prevailing party in the litigation, Allman filed a motion to recover
attorney's fees under the EAJA. The district court granted this motion, awarding over $16,000 in fees.
The Commissioner appeals, arguing that Allman is not a prevailing party, and therefore is not entitled
to recover attorney's fees.
II
A
We review a fee award under the EAJA for abuse of discretion. Spawn v. Western Bank-
Westheimer, 989 F.2d 830, 839 (5th Cir.1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1048, 127
L.Ed.2d 371 (1994). Underlying findings of fact are reviewed for clear error. Id. Underlying
conclusions of law, however, are reviewed de novo. Id. Allman may recover fees under the EAJA
only if she is the "prevailing party" in this litigation.1 A party prevails by succeeding on "any
significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."
1
There are additional requirements that a party must meet in order to collect attorney fees. In
sum, a party is entitled to recover attorney's fees under the EAJA if four requirements are met: 1)
it is the prevailing party, 2) it files a timely fee application, 3) the position of the government was
not substantially justified, and 4) no special circumstances make an award unjust. 28 U.S.C. §
2412(d); Milton v. Shalala, 17 F.3d 812 (5th Cir.1994).
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).2
We conclude that Allman did not prevail on any significant issue in the litigation for which
she seeks fees. Although Allman ultimately received prospective Social Security benefits, the
Commissioner has never contested her right to these benefits; in short, Allman "prevailed" on a claim
has never been the subject of litigation.
In the civil litigation, Allman challenged a November 1991 denial of SSI benefits for the
period beginning in February 1989. Ultimately on remand, the Appeals Counsel expressly found that
she was not entitled to any benefits before November 1992. Thus, Allman was denied all benefits that
were contested in the civil litigation. She has not appealed that denial any further. Therefore, Allman
has not prevailed as to the claim that she litigated.
B
Nor is there sufficient causal connection between the ultimate grant of benefits and the
litigation to transpose her status into a "prevailing party" for EAJA purposes. The award of benefits
must result from civil litigation. 28 U.S.C. § 2412(d)(1)(A). It is true that the award of prospective
benefits came after the case was remanded from the district court. It is also true that, on remand, the
Appeals Counsel reversed the ALJ's finding of medium work capacity and determined that Allman
was only qualified for light work. It is not disputed that the finding of light work had the synergistic
effect, when combined with the attainment of 55 years, to qualify Allman for prospective benefits.
The ultimate finding of light work, however, did not reverse the Social Security Administration order
denying benefits that was the subject of the litigation; that order did not identify the level of work
2
In Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 2631-32, 125 L.Ed.2d 239 (1993), the
Supreme Court held that a Social Security claimant prevails when her case is remanded pursuant
to the fourth sentence of 42 U.S.C. § 405(g), which applies when the district court enters "a
judgment ... reversing the decision of the Secretary ... [and] remanding the cause for a rehearing."
In this case, however, the remand was issued under the sixth sentence of Section 405(g), whereby
the district court may issue a remand when the Secretary requests one before answering the
complaint.
One does not become a prevailing party merely because the Secretary's request for
a remand is granted under sentence six. Instead, the party must actually succeed in
receiving some substantial benefit that was sought in the original appeal because of the
remand. See Milton, 17 F.3d at 813-14.
Allman was capable of performing because whether Allman could do light or medium work was not
a determinative issue in that proceeding. With respect to the finding of light work, therefore, Allman
has demonstrated only that she had succeeded in reversing an interim ruling in the internal process
of the agency. Indeed, the agency ultimately ruled for her—that she was capable of only light work.
Consequently, she has not prevailed against the position of the Social Security Administration in
achieving the benefits that it has granted her.
C
Moreover, the critical factor that caused Allman to ultimately receive benefits was an
ineluctable and involuntary change of conditions—her attaining the age of 55. In Milton v. Shalala,
we held that a person is not a prevailing party when an intervening change in the law, and not the
litigation, causes a party to receive an award. Milton, 17 F.3d 812. This is true even if the ultimate
award would not have been possible but for the litigation. We recognized that the "purpose of EAJA
is to encourage private litigants to seek review of unreasonable government conduct or to vindicate
their rights by challenging agency actions that they would otherwise comply with to avoid litigation
costs." Id. at 815; see also, Herron v. Bowen, 788 F.2d 1127, 1129 (5th Cir.1986).
The reasoning in Milton applies with equal force when benefits are ultimately received because
of a change in an applicant's age or medical condition. To receive attorney's fees, Allman must show
that she received benefits because the agency's erroneous decision or conduct was corrected as a
result of civil litigation. Here the denial of benefits to Allman has not been shown to be erroneous;
it was, in fact, ultimately upheld and not appealed.
III
In sum, we conclude that Allman was not a prevailing party. She is not entitled to attorney's
fees.3
3
Our decision today is consistent with the Eighth Circuit's holding in Swedberg v. Bowen, 804
F.2d 432 (8th Cir.1986). In Swedberg, the claimant, who was under 55, was denied benefits on
October 8, 1992, after the Commissioner determined he could perform light work. Swedberg
appealed to the district court, which remanded the case. On remand, a second ALJ reaffirmed the
prior decision that Swedberg could perform light work, but found that he became disabled as of
October 17, 1982—the date on which Swedberg turned 60. The Eighth Circuit denied
Swedberg's request for attorney's fees, concluding that a claimant "must obtain those benefits
The judgment of the district court is therefore
REVERSED.
which he sought on the original appeal to the district court." Id. at 434.