Opinion
04 Civ. 0142 (RJH) (AJP).
September 15, 2004
OPINION AND ORDER
Presently before the Court is plaintiff Raziuddin Choudhury's motion for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Choudhury had brought this action for mandamus against the Commissioner of Social Security to pay certain benefits to him or alternatively to obtain notice from the Social Security Administration ("SSA") why it was withholding those benefits from him. Without any judicial action, the SSA informed plaintiff of its reasons (plaintiff owes SSA more money than they owed him), and plaintiff filed a notice voluntarily dismissing this action. Nevertheless, plaintiff now seeks attorneys' fees under the EAJA as the "prevailing party." For the reasons stated below, the motion is DENIED.
FACTS
Plaintiff Raziuddin Choudhury, a recipient of Supplemental Security Income, states in his brief that he previously had prevailed in an overpayment action before SSA in the sum of $10,074.84. (Dkt. No. 8: Choudhury Br. at 1.) Choudhury claims that when the Social Security Administration did not pay him the money, he engaged counsel to commence this action to compel the SSA to "either pay plaintiff his past due benefits or else serv[e] appealable notice of the reason why these benefits were not being paid." (Choudhury Br. at 2.) Choudhury states:
After the complaint was filed and served and while an answer was being awaited, the plaintiff through his counsel received for the first time an official notice of new overpayment and recoupment action the Administration was taking, against the $10,074.84 as well as against the ongoing monthly benefit entitlement, based upon a new theory of overpayment that has since been timely contested. The Administration claimed that the notice was a re-issuance of an earlier notice it sent to [Choudhury]; however, [Choudhury]'s counsel who represented [Choudhury] throughout never received a single responsive communication to telephone calls and certified mail dispatched to the District Office around the time of the putative earlier notice . . .
[Choudhury] having substantially received the relief which he judicially sought, the action was discontinued.
(Choudhury Br. at 2.) In other words, after Choudhury filed this action to compel payment of the $10,074.84, or explain why not, Choudhury received (without any ruling from the Court) an explanation from SSA that he owed them more than $10,074.84:
Based on the Administrative Law Judge's decision that as of Oct. 1999 you are eligible for SSI payments due to the fact that your wife left the U.S. to live in her house in Bangladesh and that you therefore are living in a separate household, we calculated that you would have been due $10,741.86 for 08/1999 thru 02/2002. Because you are overpaid a total of $24,667.62 we have applied that underpayment against your overpayment, thus lowering the amount you must repay to $13,925.76.
(Dkt. No. 7: Choudhury Motion Ex.: May 3, 2004 Notice of Overpayment at 2.)
Choudhury, on behalf of his counsel, has applied under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for $3,143 in attorneys' fees. (Choudhury Br. at 2-3, 5.)
ANALYSIS
The Equal Access to Justice Act "authorizes the payment of fees to a prevailing party in an action against the United States."Scarborough v. Principi, 124 S.Ct. 1856, 1860 (2004). "[T]he government may defeat this entitlement by showing that its position in the underlying litigation 'was substantially justified.'" Id.; see, e.g., CFTC v. Dunn, 169 F.3d 785, 786 (2d Cir.) ("Once a party has demonstrated that it is a prevailing party under the EAJA, the burden shifts to the government to demonstrate that its litigation position was 'substantially justified.'"), cert. denied, 528 U.S. 825, 120 S. Ct. 73 (1999).Choudhury's only explanation in his moving papers as to why he is the prevailing party is that "plaintiff having substantially received the relief which he judicially sought, the action was [voluntarily] discontinued." (Dkt. No. 8: Choudhury Br. at 2;see also Dkt. No. 5: Notice of Discontinuance.) Choudhury thus implicitly relies on the catalyst theory for fee awards — his lawsuit caused SSA to voluntarily do what part of he wanted,i.e., explain its adverse decision and allow for administrative appeals. (See Dkt. No. 16: Choudhury Reply Br. at 2-3.)
The Supreme Court, however, rejected the "catalyst theory" inBuckhannon Bd. Care Home, Inc. v. West Virginia Dep't of Health Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001), holding:
Numerous federal statutes allow courts to award attorney's fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. We hold that it does not.Id. at 600, 121 S. Ct. at 1838. While Buckhannon specifically involved fees under the Americans With Disabilities Act and the Fair Housing Amendments Act, subsequent decisions in this Circuit have applied Buckhannon's rejection of the catalyst theory to other fee-shifting statutes, including the Social Security Act and the Equal Access to Justice Act. See, e.g. Preservation Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444, 451 (2d Cir. 2004) ("In Buckhannon, however, the Supreme Court rejected the catalyst theory and held that the term 'prevailing party' required a material alteration of the legal relationship of the parties or a court ordered chang[e] [in] the legal relationship between [the plaintiff] and the defendant.") (quotations omitted, alterations in original); Roberson v.Giuliani, 346 F.3d 75, 79 n. 3 (2d Cir. 2003) ("Buckhannon concerned different fee-shifting provisions from those in this case. As we have earlier noted, however, 'the standards used to interpret the term prevailing party under any given fee-shifting statute are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.'");Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1364 (Fed. Cir. 2003) ("We have held thatBuckhannon applies to EAJA.") (citing Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002), cert. denied, 537 U.S. 1106, 123 S. Ct. 871 (2003)); Thomas v. National Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003) (applying Buckhannon's rejection of the catalyst theory to the EAJA); Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002) ("[W]e discern no reason to interpret the EAJA inconsistently with the Supreme Court's interpretation of 'prevailing party' in the FHAA and the ADA as explained in Buckhannon."); McKay v. Barnhart, 327 F.Supp. 2d 263, 265 (S.D.N.Y. 2004) (Applies Buckhannon rule to EAJA in a case involving the SSA. "To be considered a 'prevailing party,' a plaintiff must have achieved a judicially-sanctioned material alteration of the legal relationship between the parties."); Edwards v. Barnhart, 238 F. Supp. 2d 645, 655-56 (S.D.N.Y. 2003) (SSA-EAJA case. "Just last year . . . the Supreme Court in Buckhannon rejected the catalyst theory as a basis for prevailing party status. . . . District Courts within this Circuit have expressly applied Buckhannon to the EAJA, as have other circuits.") (citations omitted); Abiodun v.McElroy, 01 Civ. 0439, 2002 WL 31999342 at *1 (S.D.N.Y. Mar. 6, 2002) (rejecting plaintiffs' argument for legal fees under the EAJA that their mandamus action, although dismissed, caused the INS to act on their application).
The McKay Court noted that Buckhannon does not change the prior rule 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," citing Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2631-32 (1993), and that "Buckhannon did not disturb the holding in Schaefer that a plaintiff who is awarded a § 405(g) sentence-four remand is a prevailing party." McKay v. Barnhart, 327 F. Supp. 2d at 266-67; see also, e.g., Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d at 1365-68; Edwards v.Barnhart, 238 F. Supp. 2d 645, 649 (S.D.N.Y. 2003) ("Today it is clear that by obtaining a sentence four remand a claimant immediately prevails whether or not he ultimately obtains benefits, and he may recover attorney's fees for the judicial proceeding in which he prevailed."). Because this case does not involve § 405(g), the Court need not reach this issue.
In his reply brief, Choudhury makes several arguments as to whyBuckhannon does not prevent his obtaining attorneys' fees. (Dkt. No. 16: Choudhury Reply Br. at 3-10.). First, Choudhury claims that there was judicial action, because the Court "so ordered" his notice of voluntary dismissal and the Clerk entered judgment dismissing the action. (Choudhury Reply Br. at 8-9.) Choudhury offers no case law support for this proposition and the Court has not found any. A notice of voluntary dismissal before defendant answers is effective upon filing; the Court's "so ordering" of it is superfluous. See Fed.R.Civ.P. 41(a);see also, e.g., Steiner v. Atochem, S.A., 89 Civ. 7900, 2002 WL 1870322 at *4 (S.D.N.Y. Aug. 13, 2002) ("so ordered" endorsement on Rule 41(a)(1) dismissal is "legally superfluous") (citing cases), aff'd, No. 02-9080, 70 Fed. Appx. 599, 2003 WL 21728984 (2d Cir. July 23, 2003); Young v. 1st American Fin. Servs., 191 F.R.D. 1, 2 n. 1 (D.D.C. 1999) ("The 'so ordered' endorsement added four days later [to the Rule 41(a) dismissal notice] was done in keeping with the local practice but was legally superfluous."); Sheldon v. Anperex Elec. Corp., 52 F.R.D. 1, 12 (E.D.N.Y.) ("Whether or not that [so ordered] endorsement [on the Rule 41(a) dismissal notice] comes within the doctrine of 'law of the case' is irrelevant here, since this is clearly not a case in which court approval was required in order to give effect to plaintiff's notice of dismissal."), aff'd, 449 F.2d 146 (2d Cir. 1971). In any event, the "so ordered" dismissal grants no benefits to plaintiff Choudhury. If any party can be said to "prevail" in such a situation, it is defendant SSA, since the case is dismissed.
To hold otherwise would allow plaintiffs to create a loop-hole to Buckhannon's rejection of the catalyst theory. Under Choudhury's argument, if a plaintiff obtained out-of-court relief, the plaintiff could then dismiss (or after answer, move to dismiss) the case as moot, and use the court's "so ordering" the dismissal as a way around Buckhannon's rejection of the catalyst theory. That clearly is not, and should not be, the law.
Second, Choudhury argues that the catalyst theory should still apply to EAJA/Social Security cases because the government's argument "is grossly untenable, flying in the face of irreconcilable lines of EAJA fee caselaw jurisprudence." (Choudhury Reply Br. at 3-4; see also id. at 5-7, 9.) The cases plaintiff cites, however, either pre-date Buckhannon or involve remands under § 405(g) sentence four, which is not at issue in this case. (See page 5 n. 2 above.)
Finally, even if the catalyst theory somehow were applicable, Choudhury did not in any meaningful way "prevail." The complaint sought mandamus to require payment of $10,741.86 in Social Security benefits or an explanation of why payment was being withheld. (See page 2 above.) The only voluntary relief plaintiff obtained was being provided with formal notice of why he owed the SSA some $24,000 (which notice the SSA claims to have previously provided to plaintiff). As of now, Choudhury owes the SSA some $14,000. He did not in any sense "prevail."
CONCLUSION
For the reasons stated above, plaintiff Choudhury's motion for attorneys' fees is DENIED.
FILING OF OBJECTIONS TO THIS OPINION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Holwell. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
SO ORDERED.