This case involves an application for social security disability
insurance benefits. Presently before the Court is a motion by the pro se
plaintiff Shay Liberman ("Liberman" or the "plaintiff") to recover
attorneys' fees, expenses and costs pursuant to the Equal Access to
Justice Act (the "EAJA"), 28 U.S.C. § 2412(d) and the Social Security
Act, 42 U.S.C. § 406(b).
On January 28, 1998, the plaintiff filed a complaint in the Eastern
District of New York seeking review of a final administrative decision of
the Commissioner of the Social Security Administration (the
"Commissioner") which denied his application for social security
disability insurance benefits. Thereafter, the Commissioner moved to
remand the case for further administrative proceedings because, among
other things, the Administrative Law Judge failed to note the weight that
he gave to the opinion of the treating physician and his reasons for
finding that the plaintiff's testimony of pain and functional limitations
was not credible. On August 31, 1999, the Court granted the motion
remanding the case for further administrative proceedings. Unsatisfied
with that decision, the plaintiff filed an appeal with the Second
Circuit. On February 17, 2000, the Second Circuit dismissed the appeal
because the remand order was not final under 28 U.S.C. § 1291. On
June 14, 2001, the plaintiff filed a motion to recover attorneys' fees,
expenses and costs pursuant to the EAJA and the Social Security Act.
A. Attorneys' Fees
The Social Security Act provides in pertinent part:
Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented
before the court by an attorney, the court may
determine and allow as part of its judgment a
reasonable fee for such representation, not in excess
of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such
judgment. . . .
42 U.S.C. § 406(b)(1). Because the plaintiff was
not represented by counsel at any point during the
stages of this action, he is not entitled to attorneys'
fees under the Social Security Act.
Accordingly, his motion for attorneys' fees is denied.
The EAJA provides for "fees and expenses" that include "the reasonable
expenses of expert witnesses, the reasonable cost of any study,
analysis, engineering report, test, or project which is found by the
court to be necessary for the preparation of the party's case. . . ."
28 U.S.C. § 2412(d)(2)(A). In addition to the above items, courts
permit litigants to recover telephone, postage, travel, and photocopying
costs under the EAJA. Aston v. Sec. of Health and Human Servs., 808 F.2d 9,
12 (2d Cir. 1986).
In his reply papers, the plaintiff states that he incurred $475 for
various expenses including postage, copies, stationary, transportation,
and telephone calls. However, the plaintiff's papers fail to comply with
the requirements of the EAJA because they lack an itemized statement and
the required allegation that the position of the United States was not
substantially justified. 28 U.S.C. § 2412(d)(1)(B). In addition, the
Social Security Act is silent on a litigant's right to recover the
above-noted expenses from the government and, therefore, provides no
right of recovery. Accordingly, the motion for expenses is denied.
Under the EAJA, the plaintiff is not entitled to costs because he
proceeded pro se at all stages of this action. See Maida v. Callahan,
148 F.3d 190, 193 (2d Cir. 1998) (preventing the recovery of costs
against the government under the EAJA "where the potential awardee has
proceeded under the in forma pauperis statute."). Also, the Social
Security Act does not provide a theory to recover costs because the Act
is silent on a litigant's right to recover them from the government. See
id. at 192. Accordingly, the motion to recover costs is denied.
Based upon the foregoing, it is hereby
ORDERED, that the motion for attorneys' fees, expenses and costs is
denied; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
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