The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
This was an action for mandamus to compel the Social Security
Administration ("SSA") to pay approximately $10,000 in back-pay
benefits, or, in the alternative, to explain why the back-pay was
being withheld. After the SSA informed plaintiff that he had
received benefits exceeding the amount for which he was eligible
leaving him in debt to the SSA for approximately $14,000
plaintiff moved to voluntarily dismiss his complaint. The Court
granted that request on May 19, 2004 and entered an order
discontinuing the case, but did not retain jurisdiction over the
matter. Shortly thereafter, on June 18, 2004, plaintiff moved for
attorneys' fees under the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412(d), claiming that he was a "prevailing party" in
the underlying (and by that point, dismissed) action. That motion
was referred to Magistrate Judge Andrew Peck, who on September
16, 2004 denied the request. Choudhury v. Barnhart, 2004 WL
2053014 (S.D.N.Y. Sept. 15, 2004). On October 4, 2004, plaintiff
filed timely objections to that decision and asked this court to
treat Judge Peck's opinion as a Report and Recommendation. The
Court now does so, and, for the reasons discussed below, adopts
Judge Peck's decision and denies plaintiff's request for fees. I. Standard of Review
Pursuant to Rule 54(d)(2)(D) of the Federal Rules of Civil
Procedure, district courts should treat motions for attorneys'
fees as "dispositive pretrial matter[s]" for purposes of
reviewing objections to a magistrate judge's decision.
Fed.R.Civ.P. 54(d)(2)(D). Accordingly, this Court must apply the
standard of review set forth in 28 U.S.C. § 636(b)(1)(B) and (C),
as well as Fed.R.Civ.P. 72(b), which, collectively, require
the Court to conduct a de novo review of those portions of the
magistrate judge's findings to which the parties object (subject
to certain exceptions not applicable here).
28 U.S.C. § 636(b)(1)(C). That review follows.
II. "Prevailing Party" Standards
As noted at the outset, plaintiff has moved for attorneys' fees
pursuant 28 U.S.C. § 2412(d), which allows a court to award a
"prevailing party" with fees and expenses incurred in "any civil
action (other than cases sounding in tort), including proceedings
for judicial review of agency action, brought by or against the
United States . . . unless the court finds that the position of
the Unites States was substantially justified or that special
circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).
It is well established that a plaintiff "prevails" when a court
adjudicates his claims favorably, such as where the plaintiff
attains a judgment on the merits, or a court ordered consent
decree. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't
of Health & Human Res., 532 U.S. 598, 600-602 (2001);
Preservation Coalition of Erie County v. Federal Transit
Admin., 356 F.3d 444, 452 (2d Cir. 2004) (stating that there
needs to be a "`court ordered chang[e] [in] the legal
relationship between [the plaintiff] and the defendant' or a
`material alteration of the legal relationship of the parties.'"
(alterations in the original) (quoting Buckhannon,
532 U.S. at 604)). By contrast, the Supreme Court has held that a plaintiff
does not qualify as a "prevailing party" simply because a defendant
voluntarily alters his behavior, even if in doing so the
plaintiff is substantially provided with the relief sought in the
complaint. Buckhannon, 532 U.S. at 600.*fn1 That is to
say, where a plaintiff claims to have prevailed simply because
his lawsuit preceded some voluntary act on the part of the
defendant that approximated his requested relief, he will not be
entitled to attorneys' fees under 28 U.S.C. § 2412(d). On this
basis, Judge Peck concluded that plaintiff was not a prevailing
party within the meaning of the EAJA. For the following reasons,
this Court agrees.
III. Plaintiff Is Not a "Prevailing" Party
Plaintiff objects to Judge Peck's decision and contends that he
is, in fact, a prevailing party for three reasons: 1) the "so
ordered" stamp on plaintiff's voluntary dismissal constitutes a
court-ordered alteration in the legal relationship between the
parties; 2) there is no distinction between a mandamus action and
a "sentence four" remand under § 405(g) of the Social Security
Act; and 3) he received the relief he requested in his complaint,
namely, an explanation of benefits from the SSA. The Court will
address these arguments in turn.
1. The "So Ordered" Stamp
Plaintiff offers no authority to support his claim that "so
ordering" a voluntary motion for dismissal altered the legal
relationship between the parties such that he "prevailed".
Neither has this Court found any. The essential holding of
Buckhannon is that a voluntary change in behavior by a
defendant unprompted by judicial intervention cannot ipso
facto confer prevailing party status on a plaintiff.
532 U.S. at 600-602. So in this case it cannot matter for purposes of 28 U.S.C. § 2412(d) that plaintiff ultimately
received the explanation he was looking for from the SSA,
regardless of whether the Court "so ordered" the voluntary
dismissal. Indeed, to hold otherwise would create an enormous
loophole in Buckhannon's command that a party "prevails" only
where a Court "alter[s] . . . the legal relationship of the
parties." Id., at 622 (quotation marks omitted). Namely, it
would mean that anytime a plaintiff filed a suit and then
voluntarily dismissed it he would be entitled to attorneys' fees,
regardless of whether his suit was meritorious. For exactly this
reason the Second Circuit has held that a "so-ordered"
stipulation of dismissal absent a provision indicating that the
dismissing court intends to retain jurisdiction does not
carry with it a "judicial imprimatur" sufficient to satisfy
Buckhannon's prevailing party test. Torres v. Walker,
356 F.3d 238, 244-45 (2d Cir. 2004).
Recognizing this, plaintiff argues that this Court in fact
"retained jurisdiction" over the voluntarily dismissal in the
sense that the Court must now decide plaintiff's fee application
under 28 U.S.C. § 2412(d). In other words, plaintiff's position
is that he should be considered a prevailing party because he
now asks for attorneys' fees, which, taking it a step further,
means that every plaintiff who voluntarily dismisses an action
and then brings a fee application is a prevailing party. That
simply cannot be the case. Absent some evidence that this Court
retained jurisdiction over the underlying dispute, for example
by agreeing to monitor a settlement between plaintiff and the
SSA, plaintiff cannot show that he is a "prevailing party," at
least as that term was construed in Buckhannon.
Plaintiff next argues that he prevailed because dismissal of
his case was analogous to a remand under § 405(g) of the Social
Security Act. To be sure, several courts have held that a party
obtaining a remand to an administrative agency for further
findings (in this case under sentence four of § 405(g) of the Social Security Act) is a
"prevailing party." Shalala v. Schaefer, 509 U.S. 292, 302
(1993); McKay v. Barnhart, 327 F. Supp. 2d 263, 256 (S.D.N.Y.
2004); Former Employees of Motorola Ceramic Prods. v. United
States, 336 F.3d 1360, 1365-66 (S.D.N.Y. 2003); Edwards v.
Barnhart, 238 F. Supp. 2d 645, 649 (S.D.N.Y. 2003). But
plaintiff's attempt to analogize a § 405(g) remand to the
voluntary dismissal of his complaint does not work. This Court
does not have nor did it ever have the ability to affirm,
modify, or reverse the findings of the ALJ who heard plaintiff's
administrative action, or to remand the case to the SSA (or any
other agency) for further proceedings. The administrative
decision was simply never at issue in this mandamus action, which
means that plaintiff's analogy fails.
Finally, plaintiff maintains that the explanatory letter he
received from the SSA is sufficient to confer prevailing-party
status. This argument also fails. The SSA provided its
explanation to plaintiff voluntarily, and without judicial
intervention. This is exactly the type of conduct that falls
outside the Supreme Court's holding in Buckhannon. It is of no
moment that plaintiff's $14,000 obligation to the SSA has not yet
been litigated, even if the explanatory letter opened an "avenue
through which he can now vindicate his entitlement." ...