United States District Court, N.D. New York
February 11, 2005.
RICHARD GREENIDGE, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
DECISION AND ORDER
Plaintiff Richard Greenidge (Greenidge) seeks to recover attorney's
fees and expenses under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412, based on a remand for a redetermination of Social
Security benefits under Sentence Four of 42 U.S.C. § 405(g). The
Commissioner of Social Security (Commissioner) opposes the application
arguing that the claimed hours and requested hourly rate are excessive
and unreasonable. Upon review of the submissions and applicable law,
Greenidge's motion for attorney fees is GRANTED in part, for a total
award of $7,407.68.
On January 22, 2001, Greenidge filed an application for Social Security
disability benefits and supplemental security income which was
subsequently denied.*fn1 (Tr. 74, 92-94).*fn2 He appealed, and on April
23, 2002, a hearing was held before Administrative Law Judge Thomas P.
Zolezzi (ALJ). On August 8, 2002, the ALJ issued a decision finding that
Greenidge was disabled as of January 22, 2001, but not prior thereto.
(Tr. 18-25). On August 30, Greenidge appealed the ALJ's decision as to
the date of onset of his disability and the ALJ's refusal to reopen his
prior applications for benefits.*fn3 (Tr. 11); Pl.'s Br. at 2, Dkt. No.
11. The ALJ's determination of benefits became the final decision of the
Commissioner after the Appeals Council denied review on February 6,
2004. (Tr. 4-7).
On April 5, 2004, Greenidge brought this action pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the Commissioner's
final determination. See Compl., Dkt. No. 1. On July 15, the Commissioner
answered and filed an administrative transcript, and Greenidge then filed
his brief. See Dkt. Nos. 3, 4, 11. On December 2, the parties entered
into a stipulation to remand the case for a redetermination of benefits.
See Dkt. No. 14. On December 3, the court entered an order and judgment
reversing the ALJ's decision and remanding the case under Sentence Four
of 42 U.S.C. § 405(g) pursuant to the stipulation agreement. See Dkt.
Nos. 15, 16. On December 13, Greenidge applied for taxable costs in the
amount of $179.93 which were
subsequently awarded. See Dkt. No. 17, 22. On December 17, 2004,
Greenidge also submitted a motion*fn4 for attorney's fees under the EAJA
in the amount of $12,981.10. See Dkt. Nos. 18-21. The Commissioner
opposed Greenidge's application for attorney's fees as excessive and
unreasonable. See Dkt. No. 23. On January 21, 2005, Greenidge was granted
leave to submit a reply brief which was subsequently filed with the
court. See Dkt. Nos. 24, 25, 26.
A. Equal Access to Justice Act, 28 U.S.C. § 2412
"The EAJA contains two distinct and express statutory waivers of
sovereign immunity permitting the recovery of attorneys' fees in lawsuits
brought by or against the United States." Kerin v. U.S. Postal Service,
218 F.3d 185, 189 (2d Cir. 2000) (discussing the differences between
28 U.S.C. §§ 2412(b) and (d)). Ordinarily, attorneys' fees awarded under
the EAJA may not exceed the statutory rate per hour, except where the
Commissioner has acted in bad faith. See Wells v. Bowen, 855 F.2d 37, 46
(2d Cir. 1988). This bad faith requirement is incorporated in 28 U.S.C.
§ 2412(b). See, e.g., Sierra Club v. U.S. Army Corps of Eng'rs,
776 F.2d 383, 390 (2d Cir. 1985).
Under § 2412(b), the statutory language imposes "no ceiling on the
hourly rate used to calculate bad faith fees, requiring only that such
fees be reasonable." Kerin, 218 F.3d at 190 (quotations omitted). An
award of fees under this section "requires far more egregious conduct on
the government's part than is required under section 2412(d) and it
exposes the government to liability for costs and fees above and beyond
the limit set by section 2412(d)." Wells, 855 F.2d at 46 (citations
omitted). The Second Circuit has held that "awards under the bad faith
exception must be supported by clear evidence, and that the factual
findings of the court below must exhibit a high degree of specificity."
Kerin, 218 F.3d at 192 (citations omitted) (emphasis in original).
In contrast, 28 U.S.C. § 2412(d)(2)(A) mandates that the hourly rate
for attorney's fees shall be based upon the "prevailing market rate for
the kind and quality of services provided," not to exceed "$125 per
hour," and further provides for adjustment of the hourly rate at the
based on "cost of living"*fn5 increases or other "special factors." See
28 U.S.C. § 2412(d)(2)(A); see also Jackson v. Heckler, 629 F. Supp. 398,
405 (S.D.N.Y. 1986). This section "is an entirely statutory basis for
the award of attorneys' fees." Kerin, 218 F.3d at 189. Moreover, a
prevailing party will be awarded reasonable attorney's fees under §
2412(d)(2)(A) unless the government demonstrates that its position in the
litigation was "substantially justified" or that "special circumstances
make an award just." 28 U.S.C. § 2412(d)(1)(A).
"To be considered a prevailing party, a plaintiff must have achieved a
judicially-sanctioned material alteration of the legal relationship
between the parties." McKay v. Barnhart, 327 F. Supp. 2d 263, 266
(S.D.N.Y. 2004) (citing Robertson v. Giuliani, 346 F.3d 75, 79 (2d Cir.
2003)). The Supreme Court has held that a remand under Sentence Four of
42 U.S.C. § 405(g) is a final judgment that qualifies a plaintiff for
prevailing party status. See Shalala v. Schaefer, 509 U.S. 292, 302
(1993). "Thus, not only are §§ 2412(b) and (d) statutorily distinct, but
the elements required to sustain a fee award under each subsection are
different as well." Kerin,
218 F.3d at 191.
Although it appears that Greenidge is only seeking attorney's fees
under 28 U.S.C. § 2412(d), he attempts to argue bad faith in his brief
without any specific reference to the applicable subsection of
28 U.S.C. § 2412. See Pl.'s Br. pp. 4-6, Dkt. No. 21. Inasmuch as
Greenidge purports to seek bad faith fees under 28 U.S.C. § 2412(b), this
court finds no merit or supporting evidence for such an award. See id. at
6. The fact that the Commissioner filed an answer and subsequently
entered into a stipulation for remand may represent unreasonable behavior
to Greenidge, but it is not sufficient evidence of any bad faith.*fn6
See id. at 5; see, e.g., Garcia v. Sullivan, 781 F. Supp. 969, 974
As the application relates to attorney's fees under § 2412(d), the
Commissioner does not dispute that Greenidge is entitled to an award of
the statutory rate fees. See Def.'s Br., Dkt. No. 23. Instead, she argues
that Greenidge's claimed hours and hourly rate for his attorney's fees
are both excessive and unreasonable. See id. at 2-4. The court addresses
these issues seriatim.
B. Reasonableness of the Number of Hours Claimed
"The starting point for [a] fee determination is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly
rate." DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N.Y. 1987)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "The party
seeking an award of fees should submit evidence supporting the hours
worked and rates claimed." Hensley, 461 U.S. at 433. "In making this
determination, the district court should exclude hours that are not
`reasonably expended,' i.e., hours that are excessive, redundant or
otherwise unnecessary." DiGennaro, 666 F. Supp. at 433 (quoting
Hensley, 461 U.S. at 434).
As the Supreme Court stated in Hensley: "billing judgment is an
important component in fee setting . . . Hours that are not properly
billed to one's client also are not properly billed to one's adversary
pursuant to statutory authority." Id. at 434 (citing Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in
original)). Therefore, "where the documentation of hours is inadequate,
the district court may reduce the award accordingly." Hensley,
461 U.S. at 433.
In this case, Greenidge argues that the request for 83.41*fn7 billable
hours for a total amount of $12,981.10 is reasonable due to the complex
nature of the legal issues and the medical condition*fn8 surrounding
this case. See Pl.'s Br. at 8, Dkt. No. 21. In support, Greenidge
proffers the two-page remand order by the Commissioner as evidence of the
complexity of the issues in this case. See Pl.'s Reply Br. at 3, Dkt.
No. 26. Additionally, Greenidge contends that his second cause of action
regarding the ALJ's refusal to reopen his prior applications for benefits
also involved complex legal issues. See id. at 4. He also argues that the
Commissioner's conduct in filing an answer without sufficiently
scrutinizing the record should be a basis for awarding him all of his
claimed hours. See id. at 3.
In response, the Commissioner objects to the claimed hours (83.41) as
being excessive for such a routine case. See Def.'s Br. at 4, Dkt. No.
23; Portnoy Aff., App. 6, Dkt. No. 20. The Commissioner also contends
that Greenidge's claimed hours are not adequately detailed in his
application for attorney's fees. See Def.'s Br. at 5, Dkt. No. 23.
Specifically, the Commissioner points to billing entries wherein Greenidge
has lumped separate tasks together and has cumulatively assigned a number
of hours. See id. at 6-7. She also argues that the application for over
forty hours to draft and revise a brief is unreasonable and warrants a
significant reduction of hours. See id. at 3-4.
Having reviewed the underlying record, briefs and complaint, the court
finds that Greenidge's application for his claimed hours are excessive
and unreasonable for the following reasons. See Dkt. Nos. 1, 4, 11.
First, the claimed hours are generally excessive for the tasks that were
completed and recorded in his billing entries.*fn9 See Portnoy Aff.,
App. 6, Dkt. No. 20. For example, Greenidge claims more than 5.90 hours in
preparing a district court complaint that is only five typewritten pages
with thirteen pages of attachments.*fn10 See Compl., Dkt. No. 1. In this
complaint, the first three pages are simply a reiteration of basic
procedural facts in the underlying hearing while the remaining two pages
are allegations of legal error and the requisite relief. See id. There is
no reason why a five page complaint from an appeal of an ALJ's decision
would take more than five hours to write when the issues are simply a
disagreement on the date of the onset of Greenidge's disability and the
ALJ's refusal to reopen his prior applications for benefits. See id.
Moreover, counsel was very familiar with the underlying facts and issues
in the administrative hearing since it was his firm that represented
Greenidge. (Tr. 82-83).
Second, Greenidge fails to provide a separate assignment of time for
each billed task and has in certain cases lumped several tasks together.
*fn11 See Portnoy Aff., App. 6, Dkt. No. 20. In this regard, this court
can neither assess the reasonableness of the time spent for each of these
billed activities, nor can it discern the hours performed for each task.
See id. Thirdly, the court notes that some of the billed activities were
nature, and in one instance was not even performed by counsel.*fn12 See
Portnoy Aff., App. 6, Dkt. No. 20. Regardless, Greenidge submits these
tasks as his attorney's activities and bills them at the attorney hourly
rate. See id.
Finally, Greenidge's claimed hours for numerous revisions and drafts of
his district court brief for approximately forty hours are excessive and
unreasonable.*fn13 See id. Contrary to Greenidge's contentions, the
facts surrounding this case do not contain any novel or complex issue
that requires over forty hours of research and/or writing. The fact that
Greenidge made a request for four additional pages in his brief under
L.R. 7.1 (a)(1) is also not a proper indicator of the alleged complexity
of this case. See Pl.'s Reply Br. at 6, Dkt. No. 26; Dkt. No. 8.
Additionally, Greenidge only spent two pages in his brief arguing the
complex nature of his second cause of action.*fn14 See Pl.'s Br. at
26-28, Dkt. No. 11.
Nonetheless, this case did not involve the resolution of any particularly
complex factual or legal issues that were either difficult or involved
matters of first impression.
Simply put, the issues in the underlying case were not based upon any
misunderstanding of the medical nature of Greenidge's condition since the
ALJ found him disabled. (Tr. 19, 24). Rather, the error was based upon
the determination of the date of onset of Greenidge's disability and the
ALJ's decision not to reopen his prior applications*fn15 for benefits
without reviewing the administrative record. (Tr. 22); see also Compl.,
Dkt. No. 1. In light of these circumstances and the foregoing
deficiencies, this court will exercise its discretion to make an
independent determination regarding what is the reasonable time that
should have been expended on this case. In this regard, this case does
not justify more than forty hours, especially when the issues were not
complex and the remand was based on a stipulation agreement between the
parties.*fn16 See Dkt. Nos. 14,15.
Accordingly, Greenidge is awarded attorney's fees for 40 hours rather
than the requested 83.41 hours. Additionally, Greenidge is awarded 8.18
hours in attorney's fees associated with the drafting of the EAJA
application for a total amount of 48.18 hours in attorney's fees.*fn17
C. Calculation of Hourly Rate
Generally, "an award of attorney's fees . . . is limited to $125 an
hour plus a cost of living adjustment." 28 U.S.C. § 2412(d)(2)(A). "The
district court may then adjust the fee upward or downward, based on other
considerations, such as the degree of success and the novelty and
difficulty of the questions considered." DiGennaro v. Bowen,
666 F. Supp. 426, 433 (E.D.N.Y. 1987) (citing Hensley,
461 U.S. at 434).
In Williams v. Sullivan, 829 F.2d 396, 402 (3d Cir. 1987), the Third
Circuit held that the applicable CPI for attorney's fees under the EAJA
is calculated by "using the closest available CPI to the date on which
plaintiff became the prevailing party." Id. However, in Kerin, the Second
Circuit held that "the hourly rate under § 2412(d)(1)(A) should only be
increased by the corresponding Consumer Price Index for each year in
which the legal work was performed." 218 F.3d at 194 (emphasis added);
see, e.g., McKay v. Barnhart, 327 F. Supp. 2d 263, 270 (S.D.N.Y
2004). It is well settled that a "federal district court is bound by the
rule of the circuit in which it is located," and the rule of the Second
Circuit on the question governs. Christ the King Regional High School v.
Culvert, 644 F.Supp. 1490, 1496 (S.D.N.Y. 1986) (citations omitted).
In this case, the parties disagree as to the hourly rate to be
applied. See Portnoy Aff. at 2, Dkt. No. 20; Def.'s Br. at 8, Dkt. No.
23. Specifically, their disagreement lies in the application of the
Consumer Price Index (CPI) for determining the cost of living adjustment
(COLA) to be added to the $125.00 rate. See id. The Commissioner contends
that the hourly rate
is $151.15 using the lowest CPI of 201.1 for 2004, while Greenidge argues
that the rate should be $155.63 using the highest CPI of 207.3. See
Portnoy Aff. at 2-3, Dkt. No. 20. Initially, Greenidge sought special
factors for a further increase of this $125 statutory rate. See Pl.s Br.
at 6-7, Dkt. No. 21. However, he subsequently retracted these
enhancements and only seeks COLA increases. Pl.'s Reply Br. at 5, Dkt.
No. 26. Nonetheless, the court finds no special factors such as his
experience with dealing with social security cases as justifying an
increase of the statutory fee rate other than COLA.*fn18 See Patterson
v. Apfel, 99 F. Supp. 2d 1212, 1214 (C.D. Cal. 2000).
In this regard, both parties are erroneous in their application of the
CPI to the attorney's hourly fee rate. The proper CPI to apply in
calculating the hourly fee rate is the annual CPI (204.8) for 2004 when
all of the legal work was completed. See 28 U.S.C. § 2412(d)(2)(A); see
also Kerin, 218 F.3d at 194. Accordingly, the hourly rate is $153.75.*fn19
awarded hours for 2004 (48.18) by the applicable hourly rate ($153.75)
yields a total of $7,407.68. Greenidge has not submitted any evidence of
costs or expenses in this motion since he was previously awarded taxable
costs by the Clerk of Court. See Dkt. Nos. 17, 22.
Accordingly, Greenidge is granted a total of $7,407.68 in attorney's
For the reasons stated, it is hereby
ORDERED that Greenidge motion is GRANTED in part for a total EAJA award
of $7,407.68 for 48.18 hours of attorney time at a rate of $153.75 per
hour; and it is further,
ORDERED that the Clerk of the Court serve a copy of this Decision-Order
upon the parties and close this case.