SSR 92-5c: SECTIONS 205(g) and 1631(c)(3) OF THE SOCIAL SECURITY ACT (42 U.S.C. 405(g) AND 1383(c)(3)) (28 U.S.C. 2412(d)) ADMINISTRATIVE PROCEEDINGS ON REMAND CONSIDERED PART OF CIVIL ACTION FOR WHICH ATTORNEY FEES MAY BE AWARDED UNDER THE EQUAL ACCESS TO JUSTICE ACT

SSR 92-5c

EFFECTIVE/PUBLICATION DATE: 05/01/92

Sullivan v. Hudson , 490 U.S. 877 (1989)

O'CONNOR, Supreme Court Justice

The issue before us in this case is whether a Social Security claimant is

entitled to an award of attorney's fees under the Equal Access to Justice

Act for representation provided during administrative proceedings held

pursuant to a district court remanding the action to the Secretary of

Health and Human Services.

I

Respondent Elmer Hudson filed an application for the establishment of a

period of disability and for disability benefits under the Social Security

Act, 49 Stat. 620, as amended, 42 U.S.C. § 301 et seq . (1982 ed.

and Supp. V) on September 9, 1981. On the same day, she filed an

application for supplemental security income under Title XVI of the Act.

Respondent, now 50, submitted medical evidence indicating obesity,

limitations in movement, and lower back pain. Her application for benefits

was administratively denied, and that position was upheld on

reconsideration by the Social Security Administration. Respondent

requested and received a hearing before an Administrative Law Judge (ALJ)

where she was represented by a Legal Services Corporation paralegal. At

the hearing, respondent testified that she suffered from back pain,

depression, and nervousness. Respondent was in a state of anxiety and

cried throughout the hearing. The ALJ ordered a posthearing psychiatric

examination by Dr. Anderson, a psychiatrist, and respondent's

representative chose to have her undergo an additional evaluation by Dr.

Myers, a clinical psychologist. Dr. Anderson's report indicated that

respondent suffered from mile to moderate dysthymic disorder and a

histrionic personality disorder. He concluded that respondent's

psychological condition would not interfere with her ability to work in

the domestic services area, where most of her past work experience lay.

dr

r undergo an additional evaluation by Dr.

Myers, a clinical psychologist. Dr. Anderson's report indicated that

respondent suffered from mile to moderate dysthymic disorder and a

histrionic personality disorder. He concluded that respondent's

psychological condition would not interfere with her ability to work in

the domestic services area, where most of her past work experience lay.

dr. Myers found that respondent was moderately to severely depressed,

suffered from insomnia, fatigue, psychomotor retardation, tearfulness and

anxiety. He concluded that her psychological problems, coupled with her

mild physical disabilities and back pain, rendered her unemployable absent

exhaustive rehabilitative efforts.

Based on these two reports, the ALJ rendered her decision finding that

respondent was not disabled because she was capable of performing work

similar to that she had done in the past. The ALJ's decision was approved

by the Social Security Appeals Council, thus becoming the final decision

of the Secretary concerning respondent's applications. Respondent then

brought an action in the District Court for the Northern District of

Alabama under 42 U.S.C. § 405(g) seeking judicial review of the

Secretary's decision denying benefits. The District Court found that the

Secretary's decision was supported by substantial evidence and affirmed

the denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of

Appeals for the Eleventh Circuit reversed. It vacated the Secretary's

decision and instructed the District Court to remand the case to the

Secretary for reconsideration. Hudson v. Heckler , 755 F.2d 781

benefits. The District Court found that the

Secretary's decision was supported by substantial evidence and affirmed

the denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of

Appeals for the Eleventh Circuit reversed. It vacated the Secretary's

decision and instructed the District Court to remand the case to the

Secretary for reconsideration. Hudson v. Heckler , 755 F.2d 781

(1985). The Court of Appeals agreed with respondent that "the Secretary

did not follow her own regulations" in making the disability determination

in respondent's case. Id. , at 785. The court found that those

regulations required the Secretary to consider the cumulative effect of

impairments even where no individual ailment considered in isolation would

be disabling. Ibid . In respondent's case the ALJ had never

considered the combined effect of respondent's physical and psychological

afflictions. Nor had the ALJ given any reasons for her rejection of Dr.

Myers' evaluation of the combined effects of respondent's physical and

psychological conditions. Id. , at 785-786.

Following the District Court's remand order, the Social Security Appeals

Council vacated its earlier denial of respondent's request for review and

returned the case to an ALJ for further proceedings. App. to Pet. for

Cert. 30a. The Appeals Council instructed the ALJ to provide respondent

with an opportunity to testify at a supplemental hearing and to adduce

additional evidence. Id. , at 31a. The Appeals Council also

indicated that the ALJ might wish to obtain the services of a medical

advisor to evaluate respondent's psychiatric impairment during the period

at issue. Ibid . Finally, the Appeals Council instructed the ALJ to

apply the revised regulations for determining disability due to mental

disorders which had been published by the Secretary in 1985 pursuant to

statutory directive. Ibid

l also

indicated that the ALJ might wish to obtain the services of a medical

advisor to evaluate respondent's psychiatric impairment during the period

at issue. Ibid . Finally, the Appeals Council instructed the ALJ to

apply the revised regulations for determining disability due to mental

disorders which had been published by the Secretary in 1985 pursuant to

statutory directive. Ibid . On remand, the ALJ found that respondent

had been disabled as of May 15, 1981, as she had originally maintained in

her initial applications for benefits. Respondent was represented before

the ALJ in the remand proceedings by the same counsel who had represented

her before the District Court and the Court of Appeals.

On October 22, 1986, the Appeals Council adopted the ALJ's recommended

decision and instructed the Social Security Administration to pay

respondent disability and supplemental income benefits. Id. , at

21a-23a. On December 11, 1986, the District Court, pursuant to the

Secretary's motion, dismissed respondent's action for judicial review,

finding that after the remand order respondent had obtained all the relief

prayed for in her complaint. The District Court retained jurisdiction over

the action for the limited purpose of considering any petition for the

award of attorney's fees. Respondent then filed the instant petition for

an award of attorney's fees under the Equal Access to Justice Act (EAJA),

Pub.L. 96-481, 94 Stat. 2328, as amended 28 U.S.C. § 2412(d) (1982 ed.,

Supp. V). The District Court denied respondent's fee application in toto,

finding that the position taken by the Secretary in the initial denial of

benefits to respondent was "substantially justified." App. to Pet. for

Cert. 17a-20a. The Court of Appeals again reversed. 839 F.2d 1453 (CA11

1988)

Justice Act (EAJA),

Pub.L. 96-481, 94 Stat. 2328, as amended 28 U.S.C. § 2412(d) (1982 ed.,

Supp. V). The District Court denied respondent's fee application in toto,

finding that the position taken by the Secretary in the initial denial of

benefits to respondent was "substantially justified." App. to Pet. for

Cert. 17a-20a. The Court of Appeals again reversed. 839 F.2d 1453 (CA11

1988). The Court of Appeals noted that in its earlier opinion it had found

that the Secretary had violated her own regulations by failing to consider

the cumulative effect of respondent's ailments, and that the ALJ had

failed to give her reasons for rejection of Dr. Myers' testimony

concerning the cumulative effects of respondent's ailments. Id. , at

1457-1458. The Secretary's defense of the denial of benefits to respondent

"on those two grounds was not substantially justified." Id. , at

1458. Having concluded that an award of attorney's fees was proper under

the EAJA, the court went on to consider whether the award could include

attorney's fees for work done at the administrative level after the cause

was remanded to the Secretary by the District Court. The Court of Appeals

rejected the Secretary's argument that 5 U.S.C. §§ 504(a)(1) and

504(b)(1)(C) (1982 ed., Supp. V) limited a court's power to award

attorney's fees for administrative proceedings to those situations "in

which the position of the United States is represented by counsel or

otherwise . . ." While recognizing that the Secretary was not represented

by counsel in the remand proceedings at issue here, the Court of Appeals

found that "the critical determination is whether the Secretary has staked

out a position." 839 F.2d, at 1460

ey's fees for administrative proceedings to those situations "in

which the position of the United States is represented by counsel or

otherwise . . ." While recognizing that the Secretary was not represented

by counsel in the remand proceedings at issue here, the Court of Appeals

found that "the critical determination is whether the Secretary has staked

out a position." 839 F.2d, at 1460. Since the Secretary had taken an

adversarial position in the proceedings for judicial review prior to the

remand, the Court of Appeals found that the proceedings were no less

"adversarial" on remand before the agency, and therefore a fee award

encompassing work performed before the agency on remand was proper. Ibid .

Because the Court of Appeals's decision granting attorney's fees for

representation in administrative proceedings on remand from judicial

review of a Social Security benefits determination conflicts with the

decisions of other Courts of Appeals, see, e.g., Cornella v.

Schweiker , 728 F.2d 978, 988-989 (C.A.8, 1984); we granted the

Secretary's petition for certiorari. Sub nom. Bowen v. Hudson , 488

U.S. , 109 S.Ct. 527, 102 L.Ed.2d 559 (1988).

II

In 1980, Congress passed the EAJA in response to its concern that persons

"may be deterred from seeking review of, or defending against,

unreasonable governmental action because of the expense involved in

securing the vindication of their rights." 94 Stat. 2325. As the Senate

Report put it:

The EAJA was designed to rectify this situation by providing for an award

of a reasonable attorney's fee to a "prevailing party" in a "civil action"

or "adversary adjudication" unless the position taken by the United States

in the proceeding at issue "was substantially justified" or "special

circumstances make an award unjust." That portion of the Act applicable to

"civil actions" provides, as amended, in relevant part that

situation by providing for an award

of a reasonable attorney's fee to a "prevailing party" in a "civil action"

or "adversary adjudication" unless the position taken by the United States

in the proceeding at issue "was substantially justified" or "special

circumstances make an award unjust." That portion of the Act applicable to

"civil actions" provides, as amended, in relevant part that

Application of this provision to respondent's situation here requires

brief consideration of the structure of administrative proceedings and

judicial review under the Social Security Act. Once a claim has been

processed administratively, judicial review of the Secretary's decision is

available pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §

405(g), which provides in pertinent part:

As provisions for judicial review of agency action go, § 405(g) is

somewhat unusual. The detailed provisions for the transfer of proceedings

from the courts to the Secretary and for the filing of the Secretary's

subsequent findings with the court suggest a degree of direct interaction

between a federal court and an administrative agency alien to traditional

review of agency action under the Administrative Procedure Act. As one

source puts it:

Where a court finds that the Secretary has committed a legal or factual

error in evaluating a particular claim, the district court's remand order

will often include detailed instructions concerning the scope of the

remand, the evidence to be adduced, and the legal or factual issues to be

addressed. See, e.g., Cooper v. Bowen , 815 F.2d 557, 561 (C.A.9,

1987). Often complex legal issues are involved, including classification

of the claimant's alleged disability or his or her prior work experience

within the Secretary's guidelines or "grids" used for determining claimant

disability. See, e.g., Cole v. Secretary of Health and Human

Ser vices , 820 F.2d 768, 772-773 (C.A.6, 1987)

ssed. See, e.g., Cooper v. Bowen , 815 F.2d 557, 561 (C.A.9,

1987). Often complex legal issues are involved, including classification

of the claimant's alleged disability or his or her prior work experience

within the Secretary's guidelines or "grids" used for determining claimant

disability. See, e.g., Cole v. Secretary of Health and Human

Ser vices , 820 F.2d 768, 772-773 (C.A.6, 1987). Deviation from the

court's remand order in the subsequent administrative proceedings is

itself legal error, subject to reversal on further judicial review. See, e.g., Hooper v. Heckler , 752 F.2d 83, 88 (C.A.4, 1985); Mefford

v. Gardner , 383 F.2d 748, 758-759 (C.A.6, 1967). In many remand

situations, the court will retain jurisdiction over the action pending the

Secretary's decision and its filing with the court. See Ahghazali v.

Secretary of Health and Human Services , 867 F.2d 921, 927 (C.A.6,

1989) (remanding action to District Court with instructions to retain

jurisdiction during proceedings on remand before the agency); Taylor

v. Heckler , 778 F.2d 674, 677, n. 2 (C.A.11, 1985) ("[T]he district

court retains jurisdiction of the case until the proceedings on remand

have been concluded"); accord Brown v. Secretary of Health and Human

Services , 747 F.2d 878, 883-885 (C.A.3, 1984). The court retains the

power in such situations to assure that its prior mandate is effectuated.

See Ford Motor Co. v. NLRB , 305 U.S. 364, 59 S.Ct. 301, 307, 83

L.Ed. 221 (1939).

985) ("[T]he district

court retains jurisdiction of the case until the proceedings on remand

have been concluded"); accord Brown v. Secretary of Health and Human

Services , 747 F.2d 878, 883-885 (C.A.3, 1984). The court retains the

power in such situations to assure that its prior mandate is effectuated.

See Ford Motor Co. v. NLRB , 305 U.S. 364, 59 S.Ct. 301, 307, 83

L.Ed. 221 (1939).

Two points important to the application of the EAJA emerge from the

interaction of the mechanisms for judicial review of Social Security

benefits determinations and the EAJA. First, in a case such as this one,

where a court's remand to the agency for further administrative

proceedings does not necessarily dictate the receipt of benefits, the

claimant will not normally attain "prevailing party" status within the

meaning of § 2412(d)(1)(A) until after the result of the administrative

proceedings is known. The situation is for all intents and purposes

identical to that we addressed in Hanrahan v. Hampton , 446 U.S.

754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). There we held that the

reversal of a directed verdict for defendants on appeal did not render the

plaintiffs in that action "prevailing parties" such that an interim award

of attorney's fees would be justified under 42 U.S.C. § 1988. We found

that such "procedural or evidentiary rulings" were not themselves "matters

on which a party could 'prevail' for purposes of shifting his counsel fees

to the opposing party under § 1988." Id. , at 759, 100 S.Ct., at

1990. More recently in Texas State Teachers Assn. v. Garland

Independent School Dist. , 489 U.S. _____, 109 S.Ct. 1486, 103 L.Ed.2d

866 (1989), we indicated that in order to be considered a prevailing

party, a plaintiff must achieve some of the benefit sought in bringing the

action. Id. , at _____, 109 S.Ct. at _____

fees

to the opposing party under § 1988." Id. , at 759, 100 S.Ct., at

1990. More recently in Texas State Teachers Assn. v. Garland

Independent School Dist. , 489 U.S. _____, 109 S.Ct. 1486, 103 L.Ed.2d

866 (1989), we indicated that in order to be considered a prevailing

party, a plaintiff must achieve some of the benefit sought in bringing the

action. Id. , at _____, 109 S.Ct. at _____. We think it clear that

under these principles a Social Security claimant would not, as a general

matter, be a prevailing party within the meaning of the EAJA merely

because a court had remanded the action to the agency for further

proceedings. See Hewitt v. Helms , 482 U.S. 755, 760, 107 S.Ct.

2672, 2675-76, 96 L.Ed.2d 654 (1987). Indeed, the vast majority of the

Courts of Appeals have come to this conclusion. See, e.g., Paulson v.

Bowen , 836 F.2d 1249, 1252 (C.A.9, 1988); Swedberg v. Bowen ,

804 F.2d 432, 434 (C.A.8, 1986); Brown v. Secretary of Health and Human

Services , 747 F.2d, at 880-881.

Second, the EAJA provides that an application for fees must be filed with

the court "within thirty days of final judgment in the action." 28 U.S.C.

§ 2412(d)(1)(B) (1982 ed., Supp. V). As in this case, there will often be

no final judgment in a claimant's civil action for judicial review until

the administrative proceedings on remand are complete. See Guthrie v.

Schweiker , 718 F.2d 104, 106 (C.A.4, 1983) ("[T]he procedure set forth

in 42 U.S.C. § 405(g) contemplates additional action both by the Secretary

and a district court before a civil action is concluded following a

remand"). The Secretary concedes that a remand order from a district court

to the agency is not a final determination of the civil action and that

the district court "retains jurisdiction to review any determination

rendered on remand." Brief for Petitioner 16, 16-17.

contemplates additional action both by the Secretary

and a district court before a civil action is concluded following a

remand"). The Secretary concedes that a remand order from a district court

to the agency is not a final determination of the civil action and that

the district court "retains jurisdiction to review any determination

rendered on remand." Brief for Petitioner 16, 16-17.

Thus, for purposes of the EAJA, the Social Security claimant's status as

a prevailing party and the final judgment in her "civil action . . . for

review of agency action" are often completely dependent on the successful

completion of the remand proceedings before the Secretary. Moreover, the

remanding court continues to retain jurisdiction over the action within

the meaning of the EAJA, and may exercise that jurisdiction to determine

if its legal instructions on remand have been followed by the Secretary.

Our past decisions interpreting other fee-shifting provisions make clear

that where administrative proceedings are intimately tied to the

resolution of the judicial action and necessary to the attainment of the

results Congress sought to promote by providing for fees, they should be

considered part and parcel of the action for which fees may be awarded.

In Pennsylvania v. Delaware Valley Citizens' Council , 478 U.S.

546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), we considered whether the

costs of representation before federal and state administrative agencies

in defense of the provisions of a consent decree entered under the Clean

Air Act were compensable under the fee-shifting provision of that statute.

Section 304(d) of the Clean Air Act provides for the award of a reasonable

attorney fee in conjunction with "any final order in any action brought

pursuant to" certain provisions of the Act. 42 U.S.C. § 7604(d)

d state administrative agencies

in defense of the provisions of a consent decree entered under the Clean

Air Act were compensable under the fee-shifting provision of that statute.

Section 304(d) of the Clean Air Act provides for the award of a reasonable

attorney fee in conjunction with "any final order in any action brought

pursuant to" certain provisions of the Act. 42 U.S.C. § 7604(d). In Delaware Valley , we rejected the contention that the word "action"

in the fee-shifting provision should be read narrowly to exclude all

proceedings which could be plausibly characterized as "non-judicial." We

indicated that

Similarly, in New York Gas Light Club, Inc. v. Carey , 447 U.S. 54,

100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), we held that under the fee-shifting

provision of Title VII, 42 U.S.C. § 2000e-5(k), a federal court could

award attorney's fees for services performed in state administrative and

judicial enforcement proceedings. We noted that the words of the statute,

authorizing "the court" to award attorney's fees "[i]n any action or

proceeding under this title," could be read to include only federal

administrative or judicial proceedings. 447 U.S., at 60-61, 100 S.Ct., at

2029-30. Looking to the entire structure of Title VII, we observed that

Congress had mandated initial resort to state and local remedies, and that

"Congress viewed proceedings before the EEOC and in federal court as

supplements to available state remedies for employment discrimination." Id. , at 65, 100 S.Ct., at 2031. Given this interlocking system of

judicial and administrative avenues to relief, we concluded that the

exclusion of state and local administrative proceedings from the fee

provisions would clearly clash with the congressional design behind the

statutory scheme whose enforcement the fee-shifting provisions was

designed to promote. Ibid . See also Webb v. Dyer County Board of

Education , 471 U.S. 234, 243, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233

ative avenues to relief, we concluded that the

exclusion of state and local administrative proceedings from the fee

provisions would clearly clash with the congressional design behind the

statutory scheme whose enforcement the fee-shifting provisions was

designed to promote. Ibid . See also Webb v. Dyer County Board of

Education , 471 U.S. 234, 243, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233

(1985) (work performed in administrative proceedings that is "both useful

and of a type ordinarily necessary to advance civil rights litigation" may

be compensable under § 1988); North Carolina Dept. of Transportation v.

Crest Street Community Council, Inc. , 479 U.S. 6, 15, 107 S.Ct. 336,

342, 93 L.Ed.2d 188 (1986).

We think the principles we found persuasive in Delaware Valley and Carey are controlling here. As in Delaware Valley , the

administrative proceedings on remand in this case were "crucial to the

vindication of [respondent's] rights." Delaware Valley, supra , at

561, 106 S.Ct., at 3096. No fee award at all would have been available to

respondent absent successful conclusion of the remand proceedings, and the

services of an attorney may be necessary both to ensure compliance with

the district court's order in the administrative proceedings themselves,

and to prepare for any further proceedings before the district court to

verify such compliance. In addition, as we did in Carey , we must

endeavor to interpret the fee statute in light of the statutory provisions

it was designed to effectuate. Given the "mandatory" nature of the

administrative proceedings at issue here, and their close relation in law

and fact to the issues before the District Court on judicial review, we

find it difficult to ascribe to Congress an intent to throw the Social

Security claimant a lifeline that it knew was a foot short

ee statute in light of the statutory provisions

it was designed to effectuate. Given the "mandatory" nature of the

administrative proceedings at issue here, and their close relation in law

and fact to the issues before the District Court on judicial review, we

find it difficult to ascribe to Congress an intent to throw the Social

Security claimant a lifeline that it knew was a foot short. Indeed, the

incentive which such a system would create for attorneys to abandon

claimants after judicial remand runs directly counter to long established

ethical canons of the legal profession. See American Bar Association,

Model Rules of Professional Conduct, Rule 1.16, pp. 53-55 (1984). Given

the anomalous nature of this result, and its frustration of the very

purposes behind the EAJA itself, Congress cannot lightly be assumed to

have intended it. See Christianburg Garment Co. v. EEOC , 434 U.S.

412, 418-419, 98 S.Ct. 694, 698-99, 54 L.Ed.2d 648 (1978). Since the

judicial review provisions of the Social Security Act contemplate an

ongoing civil action of which the remand proceedings are but a part, and §

2412(d)(1)(A) of the EAJA allows "any court having jurisdiction of that

action" to award fees, we think the statute, read in light of its purpose

"to diminish the deterrent effect of seeking review of, or defending

against, governmental action," 94 Stat. 2325, permits a court to award

fees for services performed on remand before the Social Security

Administration. Where a court finds that the Secretary's position on

judicial review as not substantially justified within the meaning of the

EAJA, see Pierce v. Underwood , 487 U.S. _____, _____, 108 S.Ct.

2541, _____, 101 L.Ed.2d. 490 (1988), it is within the court's discretion

to conclude that representation on remand was necessary to the

effectuation of its mandate and to the ultimate vindication of the

claimant's rights, and that an award of fees for work performed in the

administrative proceedings is therefore proper

e

EAJA, see Pierce v. Underwood , 487 U.S. _____, _____, 108 S.Ct.

2541, _____, 101 L.Ed.2d. 490 (1988), it is within the court's discretion

to conclude that representation on remand was necessary to the

effectuation of its mandate and to the ultimate vindication of the

claimant's rights, and that an award of fees for work performed in the

administrative proceedings is therefore proper. See Delaware Valley,

supra , at 561, 106 S.Ct., at 3096; Webb, supra , 471 U.S., at

243, 105 S.Ct., at 1928.

The Secretary mounts two interrelated challenges to this interpretation

of § 2412(d)(1)(A). While the Secretary's contentions are not without some

force, neither rises to the level necessary to oust what we think is the

most reasonable interpretation of the statute in light of its manifest

purpose. First, the Secretary argues that plain meaning of the term "civil

action" in § 2412(d)(1)(A) excludes any proceedings outside of a court of

law. Brief for Petitioner 12-13; Reply Brief for Petitioner 8-9. Of

course, if the plain language of the EAJA evinced a congressional intent

to preclude the interpretation we reach here, that would be the end of the

matter. In support of this proposition, the Secretary points out that the

"'[t]erm [action] in its usual legal sense means a suit brought in a

court; a formal complaint within the jurisdiction of a court of law.'"

Brief for Petitioner 13, n. 7, quoting Black's Law Dictionary 26 (5th ed.

1979). Second, the Secretary notes that Congress did authorize EAJA fee

awards under 5 U.S.C. § 504(a)(1) (1982 ed. Supp. V) where an agency

"conducts an adversary adjudication," and that an adversary adjudication

is defined in § 504(b)(1)(C (1982 ed. Supp. V) as "an adjudication . . .

in which the position of the United States is represented by counsel or

otherwise." Under 28 U.S.C. § 2412(d)(3) (1982 ed., Supp

ary notes that Congress did authorize EAJA fee

awards under 5 U.S.C. § 504(a)(1) (1982 ed. Supp. V) where an agency

"conducts an adversary adjudication," and that an adversary adjudication

is defined in § 504(b)(1)(C (1982 ed. Supp. V) as "an adjudication . . .

in which the position of the United States is represented by counsel or

otherwise." Under 28 U.S.C. § 2412(d)(3) (1982 ed., Supp. V) a court is

empowered to award fees for representation before an agency to a party who

prevails in an action for judicial review to "the same extent authorized

in [5 U.S.C. § 504(a)]." Thus, the Secretary concludes that since benefits

proceedings before the Secretary and his designates are nonadversarial,

and a court is explicitly empowered to award fees for agency proceedings

where such proceedings satisfy the requirements of § 504(a)(1), the

principle of expressio unius est exclusio alterius applies, and a

court may never award fees for time spent in nonadversarial administrative

proceedings. See Brief for Petitioner 12-18; Reply Brief for Petitioner

7-12.

We agree with the Secretary that for purposes of the EAJA Social Benefit

proceedings are not "adversarial" within the meaning of § 504(b)(1)(C)

either initially or on remand from a court. See Richardson v.

Perales , 402 U.S. 389, 403, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842

(1971). The plain language of the statute requires that the United States

be represented by "counsel or otherwise," and neither is true in this

context. Nonetheless, we disagree with the conclusion the Secretary would

draw from this fact. First, as Delaware Valley, Webb , and Carey indicate, administrative proceedings may be so intimately

connected with judicial proceedings as to be considered part of the "civil

action" for purposes of a fee award

nited States

be represented by "counsel or otherwise," and neither is true in this

context. Nonetheless, we disagree with the conclusion the Secretary would

draw from this fact. First, as Delaware Valley, Webb , and Carey indicate, administrative proceedings may be so intimately

connected with judicial proceedings as to be considered part of the "civil

action" for purposes of a fee award. This is particularly so in the Social

Security context where "a suit [has been] brought in a court" and "a

formal complaint within the jurisdiction of a court of law," remains

pending and depends for its resolution upon the outcome of the

administrative proceedings. Second, we disagree with the Secretary's

submission that a negative implication can be drawn from the power granted

a court to award fees based on representation in a prior adversary

adjudication before an agency. Section 2412(d)(3) provides that "[i]n

awarding fees and other expenses under this subsection to a prevailing

party in any action for judicial review of an adversary adjudication" the

court may award fees to the same extent that they would have been

available before the agency itself under § 504(a)(1). On its face, the

provision says nothing about the power of a court to award reasonable fees

for representation in a nonadversarial adjudication which is wholly

ancillary to a civil action for judicial review. That Congress carved the

world of EAJA proceedings into "adversary adjudications" and "civil

actions" does not necessarily speak to, let alone preclude, a reading of

the term "civil action" which includes administrative proceedings

necessary to the completion of a civil action.

epresentation in a nonadversarial adjudication which is wholly

ancillary to a civil action for judicial review. That Congress carved the

world of EAJA proceedings into "adversary adjudications" and "civil

actions" does not necessarily speak to, let alone preclude, a reading of

the term "civil action" which includes administrative proceedings

necessary to the completion of a civil action.

We conclude that where a court orders a remand to the Secretary in a

benefits litigation and retains continuing jurisdiction over the case

pending a decision from the Secretary which will determine the claimant's

entitlement to benefits, the proceedings on remand are an integral part of

the "civil action" for judicial review and thus attorney's fees for

representation on remand are available subject to the other limitations in

the EAJA. We thus affirm the judgment of the Court of Appeals on this

issue and remand the case to that court for further proceedings consistent

with this opinion.

It is so ordered

Justice O'Connor delivered the opinion of the Court, in which Justices

Brennan, Marshall, Blackmun and Stevens joined. Justice White filed a

dissenting opinion, in which Chief Justice Rehnquist and Justices Scalia

and Kennedy joined.