8 Soc.sec.rep.ser. 51, Unempl.ins.rep. Cch 15,624elmer B. Couch, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 749 F.2d 359 (6th Cir. 1984)

The plaintiff appealed from a judgment of the district court affirming the Secretary's denial of his application for disability insurance and supplemental security income benefits. On appeal this court vacated the judgment of the district court and remanded the case for an award of benefits in an unpublished per curiam opinion filed on July 26, 1984. 740 F.2d 967.

The plaintiff has now filed in this court an application for attorneys' fees and litigation costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The plaintiff filed supporting data with the application. The court concluded that it required a response from the Secretary on this issue and accordingly sought and received such response.

Upon consideration of the motion of the plaintiff and the response thereto, the court determines that an award of fees and expenses under the Equal Access to Justice Act would be inappropriate in this case. The only basis of the motion is that this court vacated the judgment of the district court upon finding that the decision of the Secretary was not supported by substantial evidence. This alone is not a proper basis for the allowance of fees and expenses under the Equal Access to Justice Act. An award is to be made under that Act unless the court finds "that the position of the United States was substantially justified...." 28 U.S.C. § 2412(d) (1) (A) (1982). The fact that this court finds a decision of the Secretary not supported by substantial evidence is not equivalent to a finding that the position of the United States was not substantially justified.

The motion for allowance of attorneys' fees and litigation expenses is denied.