Opinion
97 CIV. 4037 (DLC)
May 29, 2002
Carolyn A. Kubitschek, Lansner Kubitschek New York, NY, For Plaintiff
Susan D. Baird, Office of the United States Attorney, New York, NY, For Defendant
ORDER
Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d), plaintiff Lorenzo Hiciano ("Hiciano") moves for an award of $21,113.60 in attorney's fees and $258.57 in costs as a "prevailing party" in his Social Security appeal. These fees and costs were incurred during remanded proceedings before the Commissioner of Social Security ("Commissioner") pursuant to sentence six of 42 U.S.C. § 405 (g) and during proceedings before this Court in which plaintiff won a reversal of the Commissioner's decision denying benefits. For the reasons stated, the plaintiff is awarded $9,712.03 in attorney's fees and $44.22 in expenses.
Background
Hiciano injured his back in 1993, while employed as a general factory worker. Surgery performed that same year did not sufficiently correct the injury to permit him to return to work. He applied for Supplemental Security Income ("SSI") benefits on July 7, 1994. Following a denial of his application, Hiciano appealed to this Court. By stipulation of the parties and pursuant to sentence six of 42 U.S.C. § 405 (g), the case was remanded to the Commissioner for further administrative proceedings on November 17, 1997. By stipulation of the parties and pursuant to sentence six of 42 U.S.C. § 405 (g), this case was remanded to the Commissioner a second time on November 1, 1999. On August 11, 2000, Hiciano appealed the Commissioner's decision to deny benefits. On October 16, 2001, this Court reversed and remanded the case to the Commissioner for a calculation of disability benefits. Hiciano v. Massanari, No. 97 Civ. 4037 (DLC), 2001 WL 1230524 (S.D.N.Y. Oct. 16, 2001)
Plaintiff presently seeks $21,113.60 in attorney's fees and $258.57 in costs, for a total of $21,372.17. The fee amount reflects 239.31 hours of work expended by at least seven attorneys, eleven paralegals, three clerks, an office manager, and an unidentified number of student interns.
Discussion
The EAJA provides, in relevant part, that a court: shall award to a prevailing party . . . fees and expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless the Court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412(d)(1)(A). Defendant does not contest the awarding of attorney's fees under Section 2412(d)(1)(A). Defendant claims, however, that the fees sought are excessive and urges that the Court award no more than $7,500 in attorney's fees. Defendant further argues that costs should not be awarded to plaintiff pursuant to Maida v. Callahan, 148 F.3d 190, 193 (2d Cir. 1998)
I. Attorney's Fees
To determine reasonable attorney's fees, the court first determines the reasonable number of hours spent by counsel. A court has broad discretion to determine the amount of time reasonably expended. Aston v. Secretary of Health and Human Services, 808 F.2d 8, 11 (2d Cir. 1986). With regard to the rate of compensation, Section 2412(d)(2)(A) provides:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.28 U.S.C. § 2412(d)(2)(A) (emphasis supplied).
A. Reasonable Number of Hours
District courts in the Second Circuit have held that routine social security benefits cases generally require from twenty to forty hours of attorney time. See, e.g., Cruz v. Apfel, 48 F. Supp.2d 226, 230 (E.D.N.Y. 1999); Grey v. Chater, No. 95 Civ. 8847 (JFK), 1997 WL 12806, *1 (S.D.N.Y. Jan 14, 1997) (referring to a "twenty to forty hour benchmark's in social security benefits cases). Courts "have not hesitated," however, "to award attorney's fees well in excess of the routine twenty to forty hours where the facts of the specific case warrants [sic] such an award."Hinton v. Sullivan, No. 84 Civ. 9276 (CES), 1991 WL 123960, at *5 (S.D.N.Y. July 2, 1991). See, e.g., Aston, 808 F.2d at 12 (2d Cir. 1986) (affirming the district court's award of attorney's fees based on 200 hours); Hinton, 1991 WL 123960, at *56 (awarding attorney's fees based on 158.55 hours on the merits and 31.55 hours on the EAJA application); Garcia v. Bowen, 702 F. Supp. 409, 411 (S.D.N.Y. 1988) (awarding attorney's fees based on 156.2 hours)
Hiciano argues that the expenditure of 239.31 hours on his case is justified because the case was "extremely complicated, . . . and involved searching for medical records and doctor's reports for times long passed, and located in another state." Hiciano also argues that because he won a reversal, which, he claims, "requires more legal work than winning a remand," the time expended on his case should not be compared to the time expended in cases in which claimants won only remands from a district court.
Hiciano's case was not, however, so complicated as to require almost 240 hours of time, of which thirty-nine hours were spent by twelve members of the law firm to "review the file," and another 41.3 hours were spent preparing a twenty-one page memorandum of law. On the contrary, Hiciano's social security case is, in many ways, relatively straight forward and uncomplicated. He complained of a back injury and could point to both a specific accident that injured his back and to surgery performed in an attempt to address the injury. He was treated for five years thereafter at a single hospital clinic and its associated pain clinic. Altogether, he had three treating physicians, including his surgeon. Hiciano's earliest relevant medical records dated back to 1993, hardly "times long passed." The "other state" from which he was required to obtain some of these records was New Jersey. The litigation concerned principally whether the ALJ had given the opinions of the treating physicians the appropriate level of deference and properly assessed the plaintiff's complaints of pain. The plaintiff's two memoranda of law were twenty-one and nine pages in length. Neither presented any novel legal issue.
The plaintiff does not dispute this summary of the time sheets which appears in the defendant's brief.
Although Hiciano is entitled to attorney's fees for work performed at the administrative level subsequent to the November 1997 remand, this cannot explain the expenditure of so much time on an otherwise unremarkable case. A review of the time records indicates that the principal task on remand was the appearance at a hearing before the ALJ. The associate who attended the hearing billed three hours for the appearance, and spent approximately eleven hours preparing for the hearing. Because Hiciano has provided no information on the qualifications of the attorneys who worked on his case other than those of Carolyn Kubitschek ("Kubitschek"), who was not present at the hearing, it is not possible to determine whether a more experienced attorney could have expended fewer hours of work. From the billing rate — $100 per hour — for her work on the hearing, it appears that the attorney who attended may have been a junior associate.
Nor does the reversal of the Commissioner's decision justify a larger award. Although the briefs submitted by Hiciano argued for a reversal, the factual and legal analysis of the ALJ's decision would have been substantially the same in arguing for a remand.
As support for his argument that the disposition of his case was exceptional, Hiciano has submitted a photocopy of "Page 7" of an unnamed article, which page consists of a chart and a table of data, the source of which is not indicated.
In light of the unexceptional nature of Hiciano' s case, but also taking into account that it was twice remanded to the Commissioner, the Court concludes that an award of fees for 100 hours of work is reasonable in this case, consisting of twenty-five hours of work by Kubitschek, twenty-five hours of work by her associates, and fifty hours of work by paralegals.
This award compensates the law firm for virtually all of the time recorded by Kubitschek for her work on this case.
This is not the first time that a request for attorney's fees by Hiciano's counsel has been reduced. In Cruz v. Apfel, 48 F. Supp.2d 226, 229 (E.D.N.Y. 1999), this same law firm requested fees for 116 hours of work, but was awarded fees for sixty hours of work, a total time which the court referred to as relatively "high" but not unreasonable given the demands posed by working with "a possibly difficult client." Id. at 231. In Lagana v. Secretary of HHS, No. CV-90-2638 (CPS), 1992 WL 179215 (E.D.N.Y. July 13, 1992), the law firm requested fees in the amount of $7,401.50, but was awarded fees in the amount of $5,013.67. Id. at *1-4.
B. Reasonable Hourly Rate of Compensation
Defendant does not dispute plaintiff's argument that the $125.00 hourly rate explicitly authorized by Section 2412(d)(2)(A) of the EAJA should be adjusted for inflation based on the Consumer Price Index ("CPI") for the New York metropolitan area. See Hinton, 1991 WL 123960, at *6 n. 7. Plaintiff, in turn, does not dispute that the maximum hourly rate should only be increased by the corresponding CPI for the year in which the work was performed. See Kerin v. United States Postal Service, 218 F.3d 185, 194 (2d Cir. 2000). Thus, according to defendant's calculations, which plaintiff does not dispute, the appropriate maximum rate for attorney hours worked is $128.24 in the year 1997, $130.34 in 1998, $132.87 in 1999, $137.00 in 2000, $140.43 in 2001, and $142.43 in 2002.
The bulk of substantive associate work, including the work on the hearing before the ALJ, was performed in 2000 at the rate of $100.00 per hour. In light of Hiciano's failure to provided any information on the qualifications of the attorneys who worked on his case other than Kubitschek, this $100.00 per hour rate is appropriate.
Hiciano seeks fees for the work of paralegals at the hourly rate of $75.00. Defendant does not dispute this rate, which is in line with the "prevailing market rates," 28 U.S.C. § 2412(d)(2)(A), in the New York metropolitan area for the services performed. See Wilder v. Bernstein, 975 F. Supp. 276, 282 (S.D.N.Y. 1997); Williams v. New York City Housing Authority, 975 F. Supp. 317, 324 (S.D.N.Y. 1997).
C. Total Attorney's Fees
The attorney time sheets provided by Hiciano suggest that the following distribution of hours worked by Kubitschek from 1997 to 2002 is appropriate in this case:
1. One hour of work in 1999 at the rate of $132.87 per hour for a total of $132.87.
2. Twelve hours of work in 2000 at the rate of $137.00 per hour for a total of $1,644.00.
3. Twelve hours of work in 2001 at the rate of $140.43 for a total of $1,685.16.
This results in fees of $3,462.03 for work performed by Kubitschek. Twenty-five hours of associate work at $100.00 per hour results in fees of $2,500.00 for associate work. Fifty paralegal hours of work at a rate of $75.00 per hour results in fees of $3,750.00 for paralegal work. The total fees are thus $9,712.03.
II. Costs
Pursuant to Sections 2412(a)(1) and 2412(d)(1)(A) of the EAJA, plaintiff requests costs in the amount of $258.57, consisting of $197.10 in photocopying fees, $27.97 in electronic research, $16.25 for postage, and $17.25 for "Medical Records — CMI records — Columbia Presbytarian [sic] Hosptial," which appears to be the cost of photocopying medical records. Section 2412(a)(1) provides, in pertinent part:
Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.28 U.S.C. § 2412(a)(1) (emphasis supplied). Section 2412(d)(1)(A) provides, in pertinent part:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412(d)(1)(A) (emphasis supplied). The EAJA thus provides that a court may award costs and should award expenses unless an exception identified by these provisions applies.
Defendant argues that it should not be taxed any of the amounts listed by plaintiff because plaintiff requested and was granted leave to commence his action in forma pauperis. Defendant bases this argument on the Second Circuit's holding in Maida v. Callahan, 148 F.3d 190 (2d Cir. 1998), that "when the United States is a party to a proceeding, no costs can be taxed in favor of or against an in forma pauperis litigant." Id. at 193. The Maida Court observed that
while the EAJA generally waives the United States's immunity from costs and a successful claimant may recover costs against the government in a social security action, it does so "[e]xcept as otherwise specifically provided by statute," 28 U.S.C. § 2412(a) (emphasis added), and the in forma pauperis statute, 28 U.S.C. § 1915(f)(1), bars an award of costs against the government where a litigant proceeds under that statute.Id. at 193 (emphasis in original). Section 1915(f)(1) of the in forma pauperis statute provides that "[j]udgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred." 28 U.S.C. § 1915(f)(1) (emphasis supplied). Thus, under Maida, thein forma pauperis statute trumps the EAJA as to those amounts that qualify as "costs" under Section 1915(f)(1) and the defendant cannot be taxed for them.
This requires a determination of the meaning of the term "costs" under Section 1915(f)(1). Although it does not appear that the Second Circuit has addressed the issue, other circuits have held that Rule 54(d) of the Federal Rules of Civil Procedure controls the assessment of costs under Section 1915(f)(1). See, e.g., Flint v. Haynes, 651 F.2d 970, 973 (4th Cir. 1981) (holding, inter alia, that the assessment of costs under Section 1915(e), the prior version of Section 1915(f)(1), is generally controlled by Rule 54(d)). The costs included in Rule 54(d) are defined in 28 U.S.C. § 1920. Kuzma v. IRS, 821 F.2d 930, 932 (2d Cir. 1987). Because photocopying costs fall within the costs defined in Section 1920(4), they are not taxable under Section 1915(f)(1) and plaintiff cannot recover them from defendant. Section 1920(4) includes fees for "copies of papers necessarily obtained for use in the case" as among taxable costs. While the cost of copies made for the convenience of counsel or the court are not taxable, see S.D.N.Y. Civ. R. 54.1(c)(5), the plaintiff has presented no evidence to support a finding that the copies at issue here were made for the convenience of counsel or the court and were not necessary to the case.
None of the other amounts plaintiff seeks from defendant, however, fall within the costs defined in Section 1920 and they may be recovered as expenses under Section 2412(d)(1)(A) of the EAJA. Cf. SEC v. Kaufman, 835 F. Supp. 157, 159-60 (S.D.N Y 1993) (prevailing party entitled to reimbursement of expenses which are normally billed to client and which are not barred by Section 27 of the Securities and Exchange Act as costs under 28 U.S.C. § 1920).
Conclusion
For the reasons stated above, the Court awards plaintiff $9,712.03 for attorney's fees and $44.22 in expenses incurred in pursuing this action.