Sullivan v. Hudson

LOCATION: Sable Communications of California

DOCKET NO.: 88-616
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 490 US 877 (1989)
ARGUED: Apr 17, 1989
DECIDED: Jun 12, 1989

Edwin S. Kneedler - on behalf of Petitioner
James E. Coleman, Jr. - on behalf of Respondent

Facts of the case


Media for Sullivan v. Hudson

Audio Transcription for Oral Argument - April 17, 1989 in Sullivan v. Hudson

William H. Rehnquist:

We'll hear argument first this morning in No. 88-616, Louis W. Sullivan, Secretary of Health and Human Services v. Elmer Hudson.

Mr. Kneedler.

Edwin S. Kneedler:

Thank you.

Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether a Social Security claimant has a right under the Equal Access to Justice Act to recover from the United States the attorney's fees and expenses she incurred in administrative proceedings following a remand from a federal district court.

Before summarizing the facts in this case, I will briefly describe the two provisions of each of the Equal Access to Justice Act that have been discussed in connection with the fee award in this case.

EAJA waives the sovereign immunity of the United States to fees and expenses in certain circumstances specified in the Act itself.

EAJA contains two basic provisions, one applicable to administrative proceedings, the other to judicial proceedings.

The provision of EAJA applicable to administrative proceedings is contained in Section 504 of Title 5 of the United States Code.

It provides that an agency that conducts what the Act refers to as an adversary adjudication shall award to the prevailing party in such an adjudication the fees and expenses that were incurred unless the adjudicative officer of the agency finds that the position of the United States was substantially justified or special circumstances would make an award unjust.

The term adversary adjudication is precisely defined in EAJA to mean circumstances in which the position of the government is represented by counsel or otherwise in the adjudication.

The other provision of EAJA concerning the award of attorney's fees and expenses in court is contained in Section 2412(d) of Title 28.

It authorizes a court to award a prevailing party fees and expenses incurred by that party

"in any civil action, including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of the action. "

It is the position of the United States in this case that neither of these provisions of EAJA waives the sovereign immunity of the United States to the award of fees and expenses on remand in this case.

Section 504 is inapplicable because administrative proceedings under the Social Security Act are non-adversarial.

The government does not take a position in those hearings and is not represented by counsel or otherwise in them.

William H. Rehnquist:

Mr. Kneedler, what does the phrase "or otherwise" mean?

Edwin S. Kneedler:

Well, the model rules promulgated by the Administrative Conference of the United States and followed by federal agencies, including HHS, have given content to that.

Those model rules defined "represented by counsel or otherwise" to refer to situations in which there is another sort of representative, such as a paralegal, who might represent the government in the proceedings.

The model rules define the phrase "represented by counsel or otherwise" to refer to situations in which the position of the United States is presented by an attorney or other representative who enters an appearance and then actually participates in the administrative proceedings.

The Administrative Conference was given authority to coordinate the implementation of EAJA in the administrative context under Section 504(c)(1) of the Act, and these model rules were in effect... were promulgated in 1981 and have been in effect ever since, and were in effect when Congress reenacted EAJA in 1985.

Antonin Scalia:

Has that ever happened, Mr. Kneedler?

I'm unfamiliar with proceedings where there is somebody representing the government who is not counsel?

What kind of proceedings would they be?

Edwin S. Kneedler:

Well, I'm informed, for example, as particularly relevant here, the legislative history of the 1985 Reenactment refers to a special experimental program set up by HHS in the Social Security context in five regional offices whereby the Agency was represented in ALJ hearings.

I'm informed that in a number of occasions in those hearings non-lawyers appeared to represent the government in those proceedings.

These were program officers who were very familiar with the way in which the Social Security program operated but were not lawyers.

Byron R. White:

How come you can say the United States doesn't take a position in passing on the claim?

Edwin S. Kneedler:

Well, there is no advocate for the government, from the perspective of the government seeking to deny a claim in an administrative hearing.