Joan PETRONE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee , 936 F.2d 428 ( 1991 )

PER CURIAM:

Petrone timely appeals from a district court order denying his petition for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we find Pe-trone is not a prevailing party within the meaning of the EAJA, we affirm.

I

In 1966 and again in 1976, Petrone applied for disability insurance benefits and supplemental security income benefits. She was awarded these benefits and received them until December 1982, when the Secretary of Health and Human Services (Secretary) determined her eligibility had ceased. Petrone appealed to an administrative law judge, who affirmed the Secretary’s determination. The appeals council also affirmed, and Petrone then sought judicial review in the district court.

While her case was pending in the district court, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (Reform Act). The Reform Act required the district court to remand Petrone’s case to the Secretary for reconsideration in light of new eligibility standards. See id. at 1797-98 (mandating the remand of all actions seeking judicial review of termination decisions relating to “medical improvement” pending on September 19, 1984). Applying the new standards on remand, the Secretary reinstated Petrone’s benefits through August 1984. Petrone then timely filed a petition for attorney fees pursuant to the EAJA.

II

The EAJA provides for an award of attorney fees to a prevailing party in a civil action brought against the United States, unless the position of the United States was substantially justified or unless special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The question presented by Petrone’s appeal is whether a plaintiff whose victory results from a change in the law is a prevailing party within the meaning of the EAJA. Although an order granting or denying attorney fees under the EAJA is reviewed for an abuse of discretion, the question before us is solely legal, subject to de novo review. See Kali v. Bowen, 854 F.2d 329, 331 (9th Cir.1988).

The question has been previously open in this circuit. However, in Andrew v. Bowen, 837 F.2d 875 (9th Cir.1988), we considered a similar issue: whether a plaintiff who settles before final judgment can be a prevailing party. We required a “clear causal relationship” between the litigation and the settlement. Id. at 877, quoting McQuiston v. Marsh, 790 F.2d 798, 800 (9th Cir.1986). We therefore require a clear causal relationship between Petrone’s lawsuit and her reinstatement of benefits.

Two theories have been suggested to fulfill the causation requirement. First, Petrone asserts, correctly, that she would not have qualified for mandatory remand if her lawsuit had not been filed. See Reform Act, 98 Stat. at 1797. But Petrone did not win reinstatement in the courtroom; she won because Congress changed the law. “[Petrone] was a fortuitous beneficiary, and serendipity is not a reason for rewarding lawyers.” Hendricks v. Bowen, 847 F.2d 1255, 1259 (7th Cir.1988) (Hendricks) (Easterbrook, J., concurring).

Second, she asserts that her lawsuit, and others like it, provided a “catalyst” for congressional action. This contention is far too speculative to receive recognition. There is no record in this case from which we could divine congressional motivations. Even if we assumed that lawsuits such as this one catalyzed the Congress, no clear causal relationship can be shown to this particular suit. Accordingly, we hold Pe-trone is not a prevailing party within the meaning of the EAJA.

Petrone argues that attorney fees may be awarded because, but for the intervention of the Reform Act, she would have been awarded fees; therefore, we should remand for a fee determination hearing. We disagree. We recognize this holding may be inconsistent with Perket v. Secretary of Health and Human Services, 905 F.2d 129, 133-34 (6th Cir.1990), Rhoten v. Bowen, 854 F.2d 667, 670 (4th Cir.1988), and Robinson v. Bowen, 679 F.Supp. 1011, 1014-15 (D.Kan.1988), aff'd per curiam, 867 F.2d 600 (10th Cir.1989). We are persuaded, however, by the earlier and better view of the First, Seventh, and Eighth Circuits, rejecting an award of attorney fees in these circumstances. See Guglietti v. Secretary of Health and Human Services, 900 F.2d 397, 400-03 (1st Cir.1990); Hendricks, 847 F.2d at 1258; Truax v. Bowen, 842 F.2d 995, 997 (8th Cir.1988).

AFFIRMED.