15 Soc.sec.rep.ser. 140, Unempl.ins.rep. Cch 17,041herman W. Swenson, Plaintiff-appellant, v. Margaret M. Heckler, Secretary of Health and Human Services,defendant-appellee, 801 F.2d 1079 (9th Cir. 1986)

In December 1984, we reversed a judgment which denied Swenson social security disability benefits and remanded the case to allow the Secretary an opportunity to rebut Swenson's prima facie showing of disability. Swenson v. Heckler, 753 F.2d 1083 (9th Cir. 1984) (unpublished memorandum decision).

Swenson has now applied for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.¹  The issue is whether he is a "prevailing party," as required by the EAJA. See 28 U.S.C. § 2412(d). We hold that he is not and deny his application as premature.

In holding that securing a remand on an appeal of an administrative disability decision is insufficient to qualify a claimant as a prevailing party under the EAJA, we join the other circuits that have considered the question. See Cook v. Heckler, 751 F.2d 240 (8th Cir. 1984); Brown v. Secretary of Health and Human Services, 747 F.2d 878 (3d Cir. 1984); McGill v. Secretary of Health and Human Services, 712 F.2d 28 (2d Cir. 1983), cert. denied, 465 U.S. 1068, 104 S. Ct. 1420, 79 L. Ed. 2d 745 (1984). Cf. Taylor v. Heckler, 778 F.2d 674 (11th Cir. 1985) (concluding no fee eligibility until remand concluded and district court has entered final judgment; basing decision on finality rather than "prevailing party"). Our holding is also compelled by Ninth Circuit precedent. See Escobar-Ruiz v. INS, 787 F.2d 1294 (9th Cir. 1986).² 

APPLICATION DENIED. Swenson may renew his fee application within 60 days after obtaining an award of benefits on remand.