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November 15, 1985

AVA P. TRAHAN, ET AL., Plaintiffs,
DONALD T. REGAN, ET AL., Defendants

Oliver Gasch, United States District Judge.

The opinion of the court was delivered by: GASCH


Currently before the Court is plaintiffs' application for an award of attorneys' fees and costs. For the reasons stated below, plaintiffs are awarded $ 25,743.75 in fees and $ 80 in costs.


 This case concerns a notice mailed by the Department of Health and Human Services to Supplemental Security Income (SSI) recipients. The mailings asked approximately four million SSI recipients to sign a consent form allowing the Social Security Administration to obtain confidential tax information from the Internal Revenue Service (IRS). The forms stated, in part:

You have a choice about signing the form. But we must have accurate information about your income and what you own to pay your [SSI] checks. If you do not sign the form, your [SSI] checks may be affected.

 The Court of Appeals reversed this Court's ruling and, upon reaching the merits, found that the consent forms were invalid because they were in violation of IRS regulations and because they could not result in a knowing waiver of confidentiality rights. Tierney v. Schweiker, 231 U.S. App. D.C. 37, 718 F.2d 449, 445-57 (D.C. Cir. 1983). Plaintiffs then applied for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. *fn1"


 A. Application of 1985 Amendments to the EAJA

 Sections of the EAJA which are relevant to this application were amended on August 5, 1985. See Equal Access to Justice Act Amendments, Pub. L. No. 99-80, 99 Stat. 183 (1985). These amendments apply to "cases pending on or commenced on or after" August 5, 1985. Id. § 7(a). The government argues that "cases pending" refers only to cases pending on their merits and not to pending attorneys' fees applications.

 The "plain meaning" of the statute indicates that the amendments apply to this case. The statute does not qualify "cases pending" so as to exclude pending fee applications. Indeed, where a statute is concerned solely with fee applications, "cases pending" presumably would be commonly understood to include pending fee applications. As the Supreme Court recently noted:

Deference to the supremacy of the legislature, as well as recognition that congressmen typically vote on the language of a bill, generally require us to assume that "the legislative purpose is expressed by the ordinary meaning of the words used." Going behind the plain language of a statute in search of a possibly contrary congressional intent is a step to be taken cautiously even in the best of circumstances.

 United States v. Locke, 471 U.S. 84, 105 S. Ct. 1785, 1793, 85 L. Ed. 2d 64 (1985); see also Inner City Broadcasting Corp. v. Sanders, 236 U.S. App. D.C. 62, 733 F.2d 154, 158 (D.C. Cir. 1984).

 The Court acknowledges, however, that some of the legislative history contradicts this "plain meaning." The House Report and floor debate on H.R. 2378, the EAJA amendments bill, indicate some confusion as to the effective date provisions. *fn2" During debate on the amendments, one key supporter of H.R. 2378 stated:

I would like to clarify the effective date provisions of H.R. 2378 and the relationship of these provisions with the original act. Cases which were pending on October 1, 1984, including fee application proceedings[,] would be governed by the original act, provided that the time to file the fee application expired before the date of enactment of this bill.
The changes which are made by H.R. 2378 which merely clarify existing law are retroactive, and apply to matters which were pending on, or commenced on or after October 1, 1981. However, changes which are made by H.R. 2378 and which expand or otherwise change existing law shall take effect on the date of enactment and shall apply to matters pending on or commenced after that date.

 H.R. Rep. No. 120, 99th Cong., 1st Sess. 11 (1985).

 The 1985 amendments relevant to this case concern the meaning of "position of the United States" and "substantially justified." These phrases were part of the original EAJA, and the legislative history reveals that the 1985 amendments affecting these phrases were intended to "clarify" interpretation of existing law. As such, under the standard articulated in the House Report, these clarifications are applicable to this case.

 The Court thus concludes that, through a "plain meaning" reading of the statute or by reference to legislative history, the 1985 amendments to the EAJA that are relevant to this case will govern assessment of the instant attorneys' fees application.

 B. The EAJA Standard

 As amended, the EAJA provides:

[A] court shall award to a prevailing party . . . fees and other 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 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). Accordingly, if a party seeking attorneys' fees can establish that he is a "prevailing party," the government then can avoid an attorneys' fees award only by showing that its actions were "substantially ...

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