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ROWELL v. SULLIVAN

February 18, 1993

RUSSELL ROWELL, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: JOHN H. PRATT

MEMORANDUM OPINION

 This case comes before us on Defendant's Motion to Dismiss, Plaintiff's Opposition, and Defendant's Reply. Pursuant to Fed. R. Civ. P. 12(b), because "matters outside the pleading are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, . . ." *fn1" Upon consideration of the record herein, we find that plaintiff has failed to state a claim under 5 U.S.C. § 504, that there is no genuine issue as to any material fact, and that defendant is entitled to judgment as a matter of law.

 Background

 Plaintiff Russell Rowell, an administrative law judge ("ALJ") employed by the Department of Health and Human Services ("Department"), challenges the final decision of the Secretary of Health and Human Services to deny his application for attorney fees under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504. Plaintiff seeks fees in connection with administrative proceedings conducted by a three member panel of the Department's Appeals Council ("Panel"), as appointed by the Chair of the Appeals Council, acting under a delegation of authority from the Secretary of the Department. The Panel was appointed to conduct an examination into allegations of general bias that had been raised against plaintiff by certain Social Security disability claimants. *fn2"

 In conducting its investigation, the Panel gave notice of its actions to both ALJ Rowell and the complainants against him. Each were given an opportunity to appear at an oral proceeding, to testify, and to call and examine witnesses. After examining a random sample of approximately two hundred claims handled by ALJ Rowell for a pattern of bias of any sort, the Panel issued a Report of Findings and Conclusions and recommended that ALJ Rowell be found not generally biased. The Chair of the Appeals Council adopted this report as a final decision on March 22, 1991. See Plaintiff's Exhibit 1-D.

 ALJ Rowell then filed a request for $ 30,658.07 in attorney fees under the EAJA, at 5 U.S.C. § 504(a). The Department denied this request, concluding that the administrative proceedings conducted by the Panel did not constitute an "adversary adjudication" within the meaning of the statute. See Plaintiff's Exhibit 2. ALJ Rowell seeks review in this Court of the Department's order denying his motion for attorney fees.

 Discussion

 We begin by noting that as a partial waiver of sovereign immunity, the EAJA must be strictly construed in favor of the United States. Library of Congress v. Shaw, 478 U.S. 310, 318, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983). With this in mind, we now turn to plaintiff's claim that he is entitled to attorney fees under the EAJA.

 Prevailing parties in certain adversary administrative proceedings may recover attorney fees and costs from the federal government under the EAJA. In pertinent part, 5 U.S.C. § 504(a)(1) provides that:

 
an agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.

 5 U.S.C. § 504(a)(1) (1992). The EAJA goes on to define an "adversary adjudication" as "an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise," 5 U.S.C. § 504 (b)(1)(C)(i). Turning to section 554 of Title 5, we are told that "this section applies, . . . in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," with six statutory exceptions which are not applicable to the case before us.

 Plaintiff argues that the Panel's inquiry was an adversary adjudication, and directs the Court's attention to the statutory definitions of "adjudication" and "order" contained in the Administrative Procedure Act ("APA") at 5 U.S.C. §§ 551(6), (7), which definitions are specifically made applicable to the EAJA by 5 U.S.C. § 504(b)(2). In brief, plaintiff argues that by adopting the Panel's finding of no bias as "final," the Chair of the Appeals Council passed an "order" as defined under the APA, *fn3" and that since the APA defines "adjudication" as an "agency process for the formulation of an order," that the Panel's proceeding was an adjudication. Plaintiff's argument is creative, but misleading and irrelevant; we reject it for two reasons.

 First, plaintiff conveniently overlooks the very first sentence of 5 U.S.C. § 504(b)(2), which ordains that the definitions provided in section 551, (the APA), apply to the EAJA "except as otherwise provided in paragraph (1)." Since paragraph (1) expressly defines "adversary adjudication" (as described above), for the purposes of 504, it is clear that the definitions provided in section 551 are not applicable to that term as used in section 504. Second, even if the definitions used in section 551 were applicable, which they are not, all plaintiff would have shown is that the Panel's proceedings constituted an adjudication, not that they constituted an adversary adjudication as is required under the EAJA.

 Defendant does little to contest plaintiff's alleged facts; he does, however, dispute plaintiff's conclusions of law. Defendant argues in his Memorandum in Support of his Motion to Dismiss that plaintiff has failed to state a claim under the EAJA because (1) the proceeding at issue did not constitute an "adversary adjudication" under 5 U.S.C. § 504(b)(1)(C)(i), and 5 U.S.C. § 554; and (2) the agency was not represented by counsel or otherwise, as required under 5 U.S.C. § 504(b)(1)(C)(i). The validity of ...


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