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777 F.2d 414

Docket No. 85-1602.

Kemp v. Heckler

Eighth Circuit Court of Appeals

Submitted Aug. 8, 1985.

Decided Nov. 14, 1985.

Eighth Circuit Court of Appeals · decided 1985-11-14

Cited by 12 later decisions — most recently December 1992

5 federal appellate · 2 district ·

2 counsel of record

Applies 28 U.S.C. § 1920 · 42 U.S.C. § 1383 (§ 1631 of the Social Security Act of 1935)

Relies on Cornella v. Schweiker · Cook v. Heckler

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1985-11-14

View the full empirical analysis of this case →

¶1James R. Cromwell, Little Rock, Ark., for appellant.

¶2Karen J. Behner, Dallas, Tex., for appellee.

¶3Before HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

¶4PER CURIAM.

¶5Delton V. Kemp appeals from a district court order denying attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA). The district court had remanded the case for further administrative consideration pursuant to the Social Security Disability Benefits Reform Act of 1984. Kemp argued that since he had achieved a remand and was thus entitled to interim benefits under 42 U.S.C. § 1383(a)(7)(A), he was therefore entitled to attorneys’ fees as a prevailing party.

¶6This Court has previously held that obtaining a remand for further administrative consideration on the merits does not render the claimant a prevailing party for purposes of an attorney fee award under the EAJA. See Cook v. Heckler, 751 F.2d 240, 241 (8th Cir.1984). “It is the receipt of those benefits that renders a typical Social Security claimant a prevailing party.” Id.This case is not significantly different from Cook. Although Kemp may elect to receive interim benefits, the Secretary may require repayment of those benefits if the final decision affirms the original denial of benefits.

¶7Kemp did win his appeal to the extent that the outcome was a remand for further consideration under the proper standards, one form of relief he sought on appeal. He may therefore recover the costs of the appeal as specifically allowable *415by statute or rule of court. See 28 U.S.C. § 1920; Cook v. Heckler, 751 F.2d at 241; Cornella v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984).

¶8This decision is without prejudice to any right of Kemp to submit a claim for attorneys’ fees for this appeal if he is successful at the administrative level, or for a successful civil action appealing a final administrative decision.

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