OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. ELMER HUDSON No. 88-616 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit TABLE OF CONTENTS Question Presented Opinions Below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-16a) is reported at 839 F.2d 1453. The opinion of the district court (App., infra, 17a-20a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 45a-46a) was entered on March 14, 1988. A petition for rehearing was denied on May 24, 1988 (App., infra, 47a). On August 11, 1988, Justice Kennedy extended the time for filing a petition for a writ of certiorari to September 12, 1988, and on September 9, 1988, he further extended that time to and including October 12, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412(d), provides in pertinent part: 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 as a party to the proceeding was 7 substantially justified or that special circumstances make an award unjust (5 U.S.C. 504(a)(1)). "adversary adjudication" means 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)). In awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code, or an adversary adjudication subject to the Contract Disputes Act of 1978, the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such (an) adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust (28 U.S.C. 2412(d)(3)). QUESTION PRESENTED Whether Social Security administrative proceedings conducted after a remand from the courts are "adversary adjudications" for which attorney fees are available under the Equal Access to Justice Act, 5 U.S.C. 504(a)(1) and 28 U.S.C. 2412(d)(3). STATEMENT 1. This is an Equal Access to Justice Act (EAJA) attorney fees case arising out of a claim for Social Security and Supplemental Security Income disability benefits. In the underlying controversy, the Secretary denied respondent's application for disability benefits, on the ground that her impairments did not prevent her from performing work similar to her previous employment (App., infra, 37a). The district court affirmed, finding that the Secretary's decision was supported by substantial evidence (id. at 43a-44a). The court of appeals, however, reversed on the ground that the Secretary had (1) failed to consider the combined effect of respondent's impairments and (2) failed to explain the weight accorded to the evidence considered. The case was remanded to the Secretary with instructions to consider respondent's impairments in combination and to articulate the reasons for the decision with greater specificity (id. at 35a-42a). Pursuant to the court's remand order, the Appeals Council, acting for the Secretary, vacated its prior denial of benefits and remanded the case to an Administrative Law Judge (ALJ) for further proceedings consistent with the court's decision. The Appeals Council instructed the ALJ to "provide the claimant an opportunity to testify at a supplemental (h)earing and to submit additional evidence" (App., infra, 31a). The Appeals Council also directed the ALJ to apply recently revised regulations on mental impairments, and suggested that "(h)e may wish to obtain the testimony of a medical advisor" in this connection (ibid.). /1/ The ALJ accordingly held a supplemental hearing, at which a psychiatrist testified at the ALJ's request about respondent's mental condition (App., infra, 27a). Based on that expert testimony and other evidence in the record, the ALJ found that respondent had a disabling mental impairment (id. at 24a-29a). The Appeals Council adopted the ALJ's recommended decision and instructed the Social Security Administration to pay respondent disability benefits (id. at 21a-23a). 2. Respondent then petitioned the district court for an award of attorney fees under EAJA. The district court found that the Secretary's position in the litigation had been "substantially justified" and denied the petition (App., infra, 17a-20a). The court of appeals again reversed. Concluding that the Secretary had failed to comply with applicable disability regulations, the court of appeals held that the district court abused its discretion in finding the Secretary's position substantially justified. Turning to the question of the amount of fees to be awarded, the court held that respondent was entitled to fees not only for work performed by her attorney in the judicial review proceedings before the district court and the court of appeals, but also was entitled to recover fees for work performed in the post-remand administrative proceedings. The court recognized that 5 U.S.C. 504(b)(1)(C) limits the availability of an EAJA administrative fee award to representation in an adversary agency adjudication in which the position of the United States is represented by counsel or otherwise. The court nevertheless asserted that once the Secretary has taken the position through counsel in the district court that the claimant is not entitled to benefits, all subsequent proceedings are necessarily adversarial. In the court's view (App., infra, 15a), the fact that "the Secretary chooses not to have representation on remand * * * does not change our belief that the proceeding has become adversarial." The court directed the district court, on remand, to determine the amount of the fee award (id. at 11a n.6). REASONS FOR GRANTING THE PETITION The decision below would extend the Equal Access to Justice Act to thousands of non-adversarial administrative proceedings that Congress manifestly intended to exclude from the statute's coverage. This Court and every other court of appeals to address the issue has recognized that Social Security administrative proceedings are fundamentally non-adversarial in character. The courts of appeals have thus uniformly held that Social Security administrative proceedings are not "adversary adjudications" within the meaning of EAJA. This case is the first to hold that a different rule applies when the proceedings are conducted pursuant to a remand from the courts. In departing from the well-settled judicial construction of EAJA, the court below has extended the waiver of sovereign immunity contained therein far beyond the scope intended by Congress. The court's opinion invites a flood of new attorney fee claims that will vastly increase the cost and administrative burdens of the statute Congress enacted -- all on the basis of the patently erroneous notion that the government's adversarial posture in the courts somehow infects post-remand proceedings in which the government is not represented by counsel and does not even present a position to the decisionmaker. Further review by this Court is therefore plainly warranted. 1. The Eleventh Circuit's decision is inconsistent with this Court's established view that Social Security administrative proceedings are not adversarial, and conflicts with a long line of appellate precedent holding that these proceedings are not "adversary adjudications" within the meaning of EAJA's fee-shifting provisions. In Richardson v. Perales, 402 U.S. 389, 403 (1971), the Court stressed that the Social Security Administration "operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary." The agency's ALJs are instructed not to press a position on the government's behalf; rather, they are charged with a special duty of inquiry to develop, on the claimant's behalf, a full and fair administrative record. Id. at 410; Heckler v. Campbell, 461 U.S. 458, 471 & n.1 (1983) (Brennan, J., concurring). /2/ The agency is not "represented" by counsel or otherwise in these proceedings and thus takes no "position" on whether or not a claimant is entitled to benefits. In keeping with this settled understanding, Congress in enacting EAJA emphasized that it did not view Social Security administrative proceedings as "adversary adjudications" for which an attorney fee award would be available. It explained (H.R. Conf. Rep. 96-1434, 96th Cong., 2d Sess. 23 (1980)): (The statute) defines adversary adjudication as an agency adjudication defined under the Administrative Procedure Act where the agency takes a position through representation by counsel or otherwise. It is intended that this definition precludes an award in a situation where an agency, e.g., the Social Security Administration, does not take a position in the adjudication. Not surprisingly, therefore, the courts of appeals have heretofore uniformly held that Social Security administrative proceedings are excluded from EAJA's coverage. McGill v. Secretary of HHS, 712 F.2d 28, 30 (2d Cir. 1983), cert. denied, 465 U.S. 1068 (1984); Miller v. United States, 753 F.2d 270, 275 n.3 (3d Cir. 1985); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir. 1983); Clifton v. Heckler, 755 F.2d 1138, 1142-1143 (5th Cir. 1985); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir. 1983); Cornella v. Schweiker, 728 F.2d 978, 988-989 (8th Cir. 1984); Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir. 1984). The Eleventh Circuit, in the decision below, is the first court of appeals to hold to the contrary. /3/ The court advanced two reasons for so ruling. First, it asserted that the government's decision to contest a claimant's entitlement to benefits in district court necessarily converts any subsequent administrative proceeding on remand into an adversary adjudication. Second, it observed that previous decisions holding that fees could not be recovered for work on remanded Social Security administrative proceedings had been decided before Congress reenacted and amended EAJA in 1985. Neither of these reasons, however, offers a tenable basis for distinguishing prior precedent. (a) There is no basis for concluding that administrative proceedings conducted after a judicial remand should be treated any differently than those conducted before. The Eighth Circuit, in Cornella v. Schweiker, 728 F.2d at 988, has addressed precisely this contention and, in direct opposition to the Eleventh Circuit's decision, held that: In the (Social Security) remand proceedings at the agency level, the United States was not represented by counsel and therefore an adversary adjudication was not conducted within the language of the (EAJA) statute. Thus the Eleventh Circuit's position on the question whether post-remand administrative proceedings should be treated differently than other administrative proceedings squarely conflicts with the position of the Eighth Circuit. /4/ Moreover, the Eleventh Circuit's conclusion fundamentally misconstrues the nature of a judicial remand and the obligations that a remand order places upon the affected administrative agency. This Court has made clear that an administrative agency or any other inferior tribunal has no power to deviate from a mandate issued by a higher court. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145 (1940); Briggs v. Pennsylvania R.R., 334 U.S. 304, 306 (1948); Sprague v. Ticonic National Bank, 307 U.S. 161, 168 (1948). Thus, if the Secretary disagrees with the court's decision ordering a remand and wishes to continue to contest that decision in an adversarial setting, his recourse is to seek review of that decision in an appeal to a higher court. See e.g., Cohen v. Perales, 412 F.2d 44, 48 (5th Cir. 1969), rev'd on other grounds sub nom. Richardson v. Perales, 402 U.S. 389 (1971); Stone v. Heckler, 722 F.2d 464, 467 (9th Cir. 1983). If the Secretary does not appeal, however, then the court's resolution of disputed issues is binding on the Secretary and is no longer open to adversarial litigation on remand. In fact, the Social Security Administration's procedures treat cases before the agency on remand precisely like cases on initial review. The facts of this case underscore the Eleventh Circuit's error in concluding that post-remand proceedings are adversarial. Here, the Appeals Council, acting pursuant to the court's remand, vacated its prior denial of benefits and instructed an ALJ to conduct a new hearing. At that hearing, the government presented no evidence, was not represented by an attorney or any other agent, and in no way expressed a "position" on respondent's entitlement to benefits. Instead, the ALJ, acting as an adjudicator and not an adversary or advocate for the government, helped the respondent establish an evidentiary record by soliciting the testimony of a medical advisor, which testimony provided an essential basis for finding respondent disabled. Nothing in these post-remand proceedings lends the slightest support to the view that the Secretary's adversarial position in the district court continued to influence the proceedings on remand. Those proceedings also demonstrate another difficulty with the court of appeals' reading of the statute. Fees are available under EAJA only if the government's position in the adversarial proceeding is not substantially justified. See 28 U.S.C. 2412(d)(3) (providing that court may award fees for work performed at administrative level only upon specific finding that agency position in administrative adjudication was not substantially justified). The government's position at each stage of the proceedings must be considered separately under that statutory standard. Cf. Russell v. National Mediation Board, 775 F.2d 1289, 1291 n.8 (5th Cir. 1985) (court must determine whether government was substantially justified in litigating fee petition before awarding fee for such litigation); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984) (same); but see Trichilo v. Secretary of HHS, 823 F.2d 702, 707-708 (2d Cir. 1987). Therefore, in order to decide whether a claimant is entitled to fees for work performed before the agency on remand, it would be necessary to determine whether the agency position on the remand was substantially justified. It is difficult if not impossible, however, to imagine how such an inquiry would proceed, because the agency has taken no position on remand. Indeed, frequently (as here), changes in the applicable regulations or in the claimant's condition will have so substantially affected claimant's situation that the issues that the agency adjudicators find dispositive on the remand will bear little or no relation to the agency's position in the judicial proceeding. In fact, to the extent that an agency position on the remand can be discerned in this case it was that respondent was entitled to benefits. (b) The court of appeals also erred in suggesting that the legislative history of the 1985 EAJA warrants a departure from prior precedent barring the application of EAJA to Social Security administrative proceedings. When EAJA was enacted in 1980, it was effective only until October 1, 1984; it was subsequently reenacted in amended form in 1985 (see 42 U.S.C. 2412 note). Before the reenactment, consistent appellate court precedent had interpreted the 1980 Act's definition of "adversary adjudication" as excluding Social Security administrative proceedings (see cases cited page 7, supra). /5/ The only amendment to that term provided that adversary adjudication was to include proceedings before an agency's board of contract appeals. See Pub. L. No. 99-80, Section 1, 99 Stat. 183, 184, amending 5 U.S.C. 504(b)(1)(C). As this Court recently reaffirmed in Pierce v. Underwood, No. 86-1512 (June 27, 1988), slip op. 13, which was decided shortly after rehearing en banc was denied in this case, congressional reenactment of statutory language that has been given a consistent judicial interpretation "of course, generally includes the settled judicial interpretation. Lorillard v. Pons, 434 U.S. 575, 580-581 (1978)." The court below ignored this principle, concluding instead that the legislative history of the 1985 Act indicated that Congress intended to include within the definition of adversary adjudication all proceedings conducted after the agency has taken a position on the merits. This analysis of the legislative history of the 1985 act is also flatly inconsistent with Pierce v. Underwood, supra. In Underwood, this Court rejected an argument, based on the same House Report on which the court below relied (H.R. Rep. 99-120, 99th Cong., 1st Sess. (1985)), that the 1985 reenactment had changed the meaning of the statutory standard of "substantial justification." As the Court explained (slip op. 13), the 1985 House Report cannot be an authoritative expression of what the 1985 Congress intended, because it is not an explanation of any language that the 1985 Committee drafted, because on its face it accepts the 1980 meaning of the terms as subsisting, and because there is no indication whatever in the text or even the legislative history of the 1985 reenactment that Congress though it was doing anything insofar as the present issue is concerned except reenacting and making permanent the 1980 legislation. (Quite obviously, reenacting precisely the same language would be a strange way to make a change.) Exactly the same analysis should apply to the statutory language at issue here. In any event, the 1985 legislative history as a whole unmistakeably evidences a congressional intent to preserve the settled judicial construction of the term "adversary adjudication." In 1984, the Senate Judicial Committee reported a bill that would have defined adversary adjudications to include "hearings pursuant to section 205 and section 1631 of the Social Security Act." S. Rep. 98-586, 98th Cong. 2d Sess. 1-2 (1984). /6/ The House Judiciary Committee, however, considered and rejected a similar provision (130 Cong. Rec. H9301 (daily ed. Sept. 11, 1984) (remarks of Rep. Morrison)) and the provision was subsequently deleted from the 1984 bill passed by Congress. See 130 Cong. Rec. S13299 (daily ed. Oct. 3, 1984) (remarks of Sen. Heflin). After the President vetoed the 1984 EAJA reauthorization, /7/ Congress took up the matter again in 1985. The 1985 legislation included no provision similar to the one in the 1984 Senate bill; it instead continued to limit adversary adjudications to proceedings "in which the position of the United States is represented by counsel or otherwise". Pub. L. No. 99-80, Section 1, 99 Stat. 183, 184, amending 5 U.S.C. 504(b)(1)(C). The legislative history thus shows that Congress specifically rejected a proposal to extend EAJA to Social Security administrative proceedings, including those on remand. Even congressional proponents of the rejected proposals acknowledged that the 1985 legislation would not permit fee awards for any administrative hearings; and there was no suggestion that hearings on remand were an exception to the general rule. /8/ Senator Heflin, for example, actively supported an amendment that would have extended EAJA to Social Security administrative proceedings. See 130 Cong. Rec. S13299 (daily ed. Oct. 3, 1984) (remarks of Sen. Heflin). Nonetheless, in the floor debate on the 1985 legislation ultimately enacted into law, Senator Heflin noted that "provisions covering Social Security Act proceedings at the administrative hearing level are unable to be incorporated because of institutional opposition;" he therefore stated that, "While I believe this is an area ripe for protection, political realities dictate otherwise. And this seems to be a fight which will have to be fought another day." 131 Cong. Rec. S20350 (daily ed. July 24, 1985) (remarks of Sen. Heflin). The decision below completely ignores this legislative history. Instead, it focuses on a congressional statement, repeating a point made in the 1980 legislative history, that "(i)f * * * the agency does take a position at some point in the adjudication, the adjudication would then become adversarial." H.R. Rep. 99-120, 99th Cong., 1st Sess. Pt. 1, at 10 (1985) and H.R. Conf. Rep. 96-1434, 96th Cong., 2d Sess. 23 (1980). /9/ The court read this language as requiring that if the government has challenged the claimant's position in district court litigation, it must be deemed to have taken a position in any administrative proceedings that occur thereafter. The court of appeals' interpretation of this brief and ambiguous /10/ bit of legislative history is possible only if it is taken completely out of context. In context, it is clear that the 1985 report was referring to an experimental representation program, since discontinued, in which the Secretary was represented by counsel in administrative proceedings. /11/ As the cited report explains (H.R. Rep. 99-120, 99th Cong., 1st Sess. Pt. 1, at 10 (1985)): While this language (defining adversary adjudication) generally excludes Social Security administrative proceedings from the Act, Congress made clear in 1980 that "If * * * the agency does take a position at some point in the adjudication, the adjudication would then become adversarial," and thus be subject to the Act. It is the Committee's understanding that the Secretary of Health and Human Services had implemented an experiment in five locations in which the Secretary is represented at the hearing before the administrative law judge. This is precisely the type of situation covered by section 504(b)(1)(C). That only Social Security proceedings conducted under this experimental program were covered by EAJA is confirmed by remarks of the Chairman of the House Ways and Means Committee, Rep. Rostenkowski (Equal Access to Justice Act Amendments: Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 118 (1985)): It is true that the Equal Access to Justice Act has been extended to cover the five adversarial hearing experiments that SSA is currently undertaking, in which the government is represented at the ALJ hearing. The rationale for that extension was that, since the government was formally represented, claimants should not be unrepresented, and in such a setting, government payment for attorneys was appropriate. This rationale does not extend to the hearing process in general, either for initial applicants or for the beneficiaries appealing termination of benefits, because the process itself is not adversarial. Similarly, Senator Heflin, who advocated covering administrative proceedings, also shared this view (131 Cong. Rec. S20350 (daily ed. July 24, 1985)): Under the current provisions of the Equal Access to Justice Act, administrative proceedings where the Government is represented by counsel are covered. However, this provides limited coverage, such as the five pilot adversarial projects relating to social security claims implemented by the Secretary of Health and Human Services. In sum, the legislative history of the 1985 EAJA, like that of the 1980 Act, unambiguously supports the conclusion that the only Social Security administrative proceedings covered by EAJA were those in the experimental representation program. Neither remand proceedings nor any other currently extant Social Security administrative proceedings are covered, for the simple reason that the government's position is not represented by counsel or otherwise. There is accordingly no reason for distinguishing the consistent judicial precedent recognizing, under both Acts, that Social Security administrative proceedings are not covered by EAJA. 2. The court of appeals ruling presents a question of substantial importance because it expands the waiver of sovereign immunity in EAJA to include thousands of cases Congress did not intend to cover. Consequently, it greatly increases the costs to which the government is exposed under the statute, complicates the resolution of fee litigation, and poses a significant risk of multiplying the administrative burdens placed on the Social Security Administration. When Congress enacted EAJA in 1980, it noted that Social Security Administration cases accounted for 91% of the approximately 230,000 administrative cases concluded in a typical year; it expressly based its cost projections on the assumption that these cases would not be covered by EAJA. H.R. Rep. 96-1418, 96th Cong., 1st Sess. 20, 22 (1980). Even under the limited coverage Congress provided, the vast majority of EAJA applications are filed against HHS, nearly always in cases involving judicial review of the denial of Social Security benefits (Administrative Office of the United States Courts, 1988 Ann. Rep. of the Director 63-64). For example, of the 498 reported EAJA applications filed in FY 1988, 448 were filed against HHS; 41 in the courts of appeals, and 407 in the district courts (id. at 65-66). The potential for future liability under the rule espoused by the court below is even greater. In FY 1986, HHS processed 8,979 Social Security cases on remand from judicial review; 6,118 of those cases (68%) ultimately resulted in the payment of benefits (SSA 1988 Ann. Rep. 23 (March. 1988)). /12/ This represents a very substantial pool of potential additional EAJA claims. Perhaps even more troubling, however, is the fact that the opinion below would substantially increase the difficulty of administering EAJA. Although the Court has recently reiterated that "a 'request for attorney's fees should not result in a second major litigation'" (Underwood, slip op. 10, quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)), the rule enunciated below would have precisely that effect. If a claimant who prevailed at the agency level on remand may be entitled to EAJA fees for representation not only before the district court, but also in the subsequent agency proceedings, then the district court must determine whether the government's position in both phases of the case was substantially justified. As we have explained, however (see pp. 9-10 supra), the agency takes no position on the remand, and changed circumstances will frequently make it quite inaccurate to assume, as the court below did, that the issues that were the focus of judicial review remain unchanged on the remand. The district court will thus be faced with the unenviable task of defining an agency position when the agency has taken no position through counsel or otherwise, and then deciding whether that phantom "position" was substantially justified. As the Court stated in discussing other EAJA issues in Underwood, slip op. 7, this investment of judicial energy will "strangely distort" the process of judicial review. Alternatively, claimants who have had cases remanded to the agency may well commence two EAJA proceedings: one in the district court for the judicial phase of the proceeding and one at the administrative level for the post-remand phase of the proceeding. If that happens, HHS, rather than the court, will be required to formulate and evaluate the hypothetical agency position. The agency obviously has no extant procedures for making such determinations; nevertheless, unless the decision below is reversed, it will have to attempt to develop such administration procedures in order to process fee requests from the Eleventh Circuit. Congress never intended EAJA to trigger the volume of administrative fee litigation presaged by the Eleventh Circuit's opinion, or to generate such convoluted and duplicative inquiries into the government's conduct. The decision below therefore warrants review by this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General WILLIAM KANTER JEFFREY A. CLAIR Attorneys OCTOBER 1988 /1/ While this case was pending in the courts, respondent had filed a new application for disability benefits covering the period at issue here as well as an additional period of time. In reviewing this new claim for benefits, the ALJ, apparently unaware that the prior administrative decision was under judicial review, reopened the prior administrative decision and found that respondent had been disabled for the entire period at issue in that case. In its remand order in this case, the Appeals Council noted that the ALJ lacked jurisdiction to reopen a claim that is before the courts for review, and accordingly directed fresh consideration of respondent's entitlement to benefits for the period covered by the reopening (App., infra, 30a-31a). /2/ For example, in this case on remand the ALJ called an expert to testify concerning respondent's psychiatric problems, as the Appeals Council had suggested. /3/ But see Baeder v. Heckler, 826 F.2d 1345, 1347 (3d Cir. 1987) (stating in dicta that, in determining EAJA award, "district court may also consider the time expended by (claimant's) counsel, following remand, in connection with obtaining (social security disability) benefits"). /4/ In Kelly v. Bowen, Nos. 87-1999 and 87-2164EA, the Eighth Circuit has requested supplemental briefing on whether the 1985 EAJA amendments call into question its 1984 decision in Cornella. For the reasons discussed infra, we have argued in Kelly that the 1985 reenactment of EAJA did not alter in any way the "adversary adjudication" provisions of the original EAJA that were construed in Cornella. We will forward to the Court any decision rendered in Kelly as soon as we receive it. /5/ The Secretary's regulations (48 Fed. Reg. 45251, 45253 (1983)), as well as model EAJA rules promulgated by the Administrative Conference of the United States (46 Fed. Reg. 32900, 32912 (1981)) also made clear that adversary adjudications under EAJA were limited to proceedings in which the agency, "is presented by an attorney or other representative who enters an appearance and participates in the proceeding" -- a definition that excludes Social Security administrative proceedings. /6/ Hearings conducted pursuant to Section 205(g) of the Social Security act (42 U.S.C. 405(g)) and Section 1631(c)(3) of the Social Security Act (42 U.S.C. 1383(c)(3)) include, inter alia, administrative hearings conducted on remand from the courts. /7/ See President's Memorandum of Disapproval, 20 Weekly Comp. Pres. Doc. 1815 (Nov. 9, 1984). /8/ Since remand hearings are a significant part of the administrative process, it is hardly likely that they were simply overlooked by those considering the scope of the bill. /9/ Remarkably, although the court recognized (App., infra, 14a, n.8) that the 1985 House Report was simply quoting the 1980 Conference Report, it interpreted that quotation as evidence that Congress intended to adopt a broadened definition of adversary adjudication in 1985 (id. at 13a-14a). /10/ It is, for example, far from clear that the term "adjudication" refers to the entire process to determine the claimant's entitlement to benefits, rather than just to the particular judicial or administrative proceeding at which the agency is represented. In context, it is evident that Congress was referring only to an agency adjudication, i.e., a proceeding in which the agency was represented, not to the entire process. /11/ The representation program is described in Salling v. Bowen, 641 F. Supp. 1046 (W.D. Va. 1986), vacated as moot, No. 86-212 (4th Cir. June 15, 1987), in which the district court enjoined the continuation of the project (implemented in five regional offices), principally on the ground that it violated statutory requirements that Social Security administrative proceedings be non-adversarial (641 F. Supp. at 1071-1073). In light of this opinion and experience with the project, the Secretary decided, after filing an appeal in Salling, to discontinue the project. Accordingly, on May 7, 1987, the Secretary revoked the project's authorizing regulations, thereby mooting the case. See 52 Fed. Reg. 17286. There are now no administrative proceedings under Title II or Title XVI of the Social Security Act in which the Secretary, acting through an attorney or any other representative, enters an appearance before the administrative decisionmaker and takes a position on the claimant's entitlement to benefits. /12/ There were 10,317 remands processed in FY 1987, of which 6,984 (68%) resulted in the payment of benefits. Those figures appears to be somewhat higher than the norm, however, since HHS informs us that there were only 4,39 cases processed in the first three quarters of FY 1988, 3,230 (74%) of which resulted in benefit payments; these figures are more in line with the pre FY 1987 figures. APPENDIX