Opinion
5:20-CV-689 (FJS/TWD)
2022-07-25
Lionel JOELL, Plaintiff, v. Christine WORMUTH, in her official capacity as Secretary of the Army, Defendant.
ROBERT C. WHITAKER, ESQ., HANCOCK ESTABROOK, LLP, 1800 AXA Tower I, 100 Madison Street, Syracuse, New York 13202, Attorneys for Plaintiff. EMER M. STACK, AUSA, OFFICE OF THE UNITED STATES ATTORNEY, James Hanley U.S. Courthouse & Federal Building, 100 South Clinton Street, Suite 9000, Syracuse, New York 13261, Attorneys for Defendant.
ROBERT C. WHITAKER, ESQ., HANCOCK ESTABROOK, LLP, 1800 AXA Tower I, 100 Madison Street, Syracuse, New York 13202, Attorneys for Plaintiff. EMER M. STACK, AUSA, OFFICE OF THE UNITED STATES ATTORNEY, James Hanley U.S. Courthouse & Federal Building, 100 South Clinton Street, Suite 9000, Syracuse, New York 13261, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
SCULLIN, Senior Judge
I. BACKGROUND
In November 2021, the Court granted Defendant's motion to voluntarily remand this action to the Army Board of Correction for Military Records ("ABCMR") with instructions to the ABCMR to consider issues that it had previously disregarded when it upheld Plaintiff's involuntary discharge from the Army. See generally Dkt. No. 14. Those issues stemmed from Plaintiff's "Article 15" hearing with his Commanding General, after which he was found guilty of sexual harassment, and the Board of Inquiry ("BOI") hearing subsequent to his Article 15. See id. at 2.
Specifically, Plaintiff alleged violations of his due process rights, including that he was precluded from preparing a meaningful defense because he could not talk to any females under his command or witnesses to the alleged incidents, one BOI member engaged in ex parte communications with witnesses and conducted an independent investigation, Plaintiff was wrongly precluded from introducing certain evidence even though the Military Rules of Evidence do not apply at BOIs, and the BOI members improperly questioned Plaintiff regarding his reasons for exercising his constitutional right to silence. See id. At the time that Defendant asked for a voluntary remand, she admitted that the ABCMR had not fully addressed those issues and "acknowledge[d] the need for the ABCMR to provide additional analysis' " on them. See id. at 5 (quoting Dkt. No. 8-1 at 9-10). Defendant believed that this was a " 'substantial and legitimate basis' " to remand. See id. (quoting Dkt. No. 8-1 at 9-10).
In its Order granting Defendant's motion, the Court found that voluntary remand was appropriate because Defendant made the motion without delay, and remand would not be futile because the possibility remained that the ABCMR could order Plaintiff relief after considering all of the issues. See id. at 5-6. The Court noted that relief on remand seemed "particularly likely because Plaintiff has raised serious allegations regarding due process deficiencies at the Article 15 and BOI . . . that Defendant admits the ABCMR must reconsider and address in detail." See id. at 6. The Court then imposed a 90-day deadline on the ABCMR to reconsider Plaintiff's claims and issue a decision explaining its rationale. See id. at 7. Finally, the Court ordered that "the Clerk of the Court shall enter judgment in Plaintiff's favor, thereby rendering him a prevailing party for purposes of the [Equal Access to Justice Act ("EAJA")], cf. Morant v. Harker, No. 3:19-cv-1791 (VLB), 2021 WL 781795, 2021 U.S. Dist. LEXIS 37055 (D. Conn. Mar. 1, 2021), and close this case." See id. at 8. The Clerk entered judgment accordingly. See Dkt. No. 15.
In December 2021, Plaintiff moved for attorneys' fees and costs as a prevailing party under the EAJA. See Dkt. No. 16. Defendant opposed Plaintiff's motion and cross-moved for reconsideration of the Court's decision declaring Plaintiff a prevailing party for EAJA purposes. See Dkt. No. 18. In a July 2022 Order, the Court denied Defendant's cross-motion for reconsideration, affirmatively held that the remand was due to the ABCMR's administrative errors, and maintained that Plaintiff was a prevailing party under the EAJA. See Dkt. No. 24. The Court now considers Plaintiff's motion for attorneys' fees and costs and Defendant's opposition to that motion. See Dkt. Nos. 16, 18.
II. DISCUSSION
A. Whether Plaintiff is entitled to reasonable attorneys' fees
"Under the EAJA, 'a court shall award to a prevailing party other than the United States fees and other 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.' " Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 81 (2d Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A); see Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir. 2007)). The United States "bears the burden of showing that [its] position was 'substantially justified,' which the Supreme Court has construed to mean 'justified to a degree that could satisfy a reasonable person.' " Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988)) (footnote omitted). "To make this showing, the [United States] must demonstrate that [its] position had a 'reasonable basis both in law and fact.' " Id. at 81-82 (quoting [Pierce, 487 U.S.] at 563, 108 S.Ct. 2541 (internal quotation marks omitted); see Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d Cir. 2005)). "When assessing the 'position of the United States,' [the Court] review[s] both 'the position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based.' " Id. at 82 (quoting 28 U.S.C. § 2412(d)(2)(D)) (other citations omitted).
"[E]ven in the absence of 'substantial justification,' a court may nevertheless reduce or deny fees under the EAJA if 'special circumstances make an award unjust.' " Rosalee Ann S. v. Comm'r of Soc. Sec., No. 6:20-CV-600, 2021 WL 2651942, *1, 2021 U.S. Dist. LEXIS 119701, *3-*4 (N.D.N.Y. June 28, 2021) (Hurd, J.) (quoting 28 U.S.C. § 2412(d)(1)(A)). "Although the statute does not define 'special circumstances', the Second Circuit has held that equitable considerations should inform a court's decision in this area." Martinez v. Astrue, No. 08-CV-0117 (NAM/DRH), 2010 WL 890953, *2, 2010 U.S. Dist. LEXIS 21269, *6 (N.D.N.Y. Mar. 8, 2010) (Mordue, C.J.) (citing Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 1983)). " 'This "safety valve" . . . gives the court discretion to deny awards where equitable considerations dictate an award should not be made.' " Id. (quoting [Oguachuba, 706 F.2d at 98] (parenthetical omitted)). "The burden of establishing 'special circumstances' falls on the government[.]" Rosalee Ann S., 2021 WL 2651942, at *1, 2021 U.S. Dist. LEXIS 119701, at *4 (citing Salvo [v. Comm'r of Soc. Sec.], 751 F. Supp. 2d [666,] 671 [ (S.D.N.Y. 2010) ]).
Plaintiff argues that he is entitled to reasonable attorneys' fees because Defendant's actions were not substantially justified and there were no special circumstances that render a fee award unjust. See Dkt. No. 16-1, Pl.'s Memorandum in Support, at 5-7. Defendant asserts that its position was substantially justified because it sought to voluntarily remand this case before the answer deadline. See Dkt. No. 18-1, Def.'s Memorandum in Opposition, at 16-17. However, as stated above, the Court may consider the agency's prelitigation conduct insofar as it is the basis of the plaintiff's civil action. See Ericksson, 557 F.3d at 82. In its July 2022 Order, the Court noted that it had both implicitly and explicitly concluded that the ABCMR's prelitigation conduct in failing to address procedural and due process errors at Plaintiff's Article 15 and BOI hearings was unreasonable and erroneous. Such failure thus precludes the Court from finding that the United States' position was "substantially justified."
Nonetheless, Defendant contends that there are special circumstances that would make an award of attorneys' fees unjust. See Dkt. No. 18-1 at 18-19. Defendant argues that it promptly sought a remand and Plaintiff's efforts in this litigation have achieved for him "no appreciable advantage." See id. at 19. Defendant thus asserts that it would be unjust to shift the costs of opposing the motion to remand to the Government since Plaintiff could have consented to the remand and the results would have been the same. See id. Plaintiff, to the contrary, asserts that he succeeded in obtaining relief that he sought in the litigation, i.e., remand to the ABCMR to consider and address various errors that resulted in his improper discharge. See Dkt. No. 16-1 at 7. Additionally, Plaintiff contends that he also succeeded in obtaining a shortened deadline of 90 days for the ABCMR to issue a decision on remand, rather than the six-month period that Defendant requested. See id. As such, Plaintiff argues that "Defendant's gross disregard for its own rules, regulations[,] and [his] constitutional rights, coupled with [his] success in this action support an attorney's fee award and there are no special circumstances to conclude otherwise." See id. (citation omitted).
Although Defendant promptly sought a remand of this action, it did so after the ABCMR failed to consider various procedural and due process issues that Plaintiff raised, and then unreasonably delayed issuing its initial decision in this matter for more than three years. See Dkt. No. 14 at 3. Instead of consenting to Defendant's remand and potentially waiting another six months to three years for relief, Plaintiff opposed the motion and obtained the relief he requested - a remand, an affirmative judicial finding of agency error, and an order that the ABCMR issue its new decision fully considering the issues Plaintiff originally raised before it within 90 days of the Court's order. See id. at 6-7; Dkt. No. 24. Accordingly, the Court finds that it would be fair and appropriate, and not unjust, to award Plaintiff attorneys' fees and costs for his counsel's efforts in opposing Defendant's motion.
B. Amount constituting a reasonable attorneys' fee award
Since the Court finds that awarding Plaintiff reasonable attorneys' fees would not be unjust, the Court must next determine what fee award would be reasonable to compensate Plaintiff for the time his counsel expended on this matter. " 'The district court retains discretion to determine . . . what constitutes a reasonable fee.' " Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998) (internal quotation marks omitted)). Both the Second Circuit "and the Supreme Court have held that the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case - creates a 'presumptively reasonable fee.' " Id. (quoting Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S. Ct. 1662, 1673, 176 L. Ed. 2d 494 (2010)). The Court addresses the reasonable hourly rate and the reasonable number of hours expended separately.
1. Reasonable hours expended
"In determining whether a reasonable number of attorney hours were expended, the court should 'examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case' and '[i]f the court determines that certain claimed hours are excessive, redundant, or otherwise unnecessary, the court should exclude those hours in its calculation of the lodestar.' " Kahlon v. Yitzhak, 270 F. Supp. 3d 583, 591 (E.D.N.Y. 2017) (quoting Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (internal quotations and citations omitted)).
Plaintiff contends that his counsel invested a total of 85.7 hours as part of this litigation, which does not represent time counsel expended before the ABCMR issued its decision on March 21, 2019. See Dkt. No. 16-1 at 8. He attached to his motion the contemporaneous time records that his counsel maintained for all such work. See Dkt. No. 16-4, Ex. A, Whitaker Time Recs. Defendant responds that the Court should reduce the number of hours reasonably expended because Plaintiff's counsel attests that he spent 87.3 hours on this matter, yet his fee application fails to demonstrate the complexity of the issues involved in this case. See Dkt. No. 18-1 at 24. Defendant contends that this is particularly true since the matter could have been resolved if Plaintiff had consented to Defendant's request for a voluntary remand, which Defendant filed in the early stages of litigation. See id. at 25.
Notably, Attorney Whitaker's time records show that he expended 87.3 hours working on Plaintiff's case, not 85.7 as Plaintiff contends. See Dkt. No. 16-4 at 9.
In counsel's contemporaneous time records, he indicates that he met and corresponded with Plaintiff, reviewed documents, drafted the complaint, conducted legal research, filed affidavits of service, reviewed the docket, spoke on the telephone with Defendant's attorney, reviewed Defendant's motion to remand, drafted a memorandum of law in response, prepared a notice of motion for attorneys' fees, and prepared an attorney declaration and a memorandum of law in support of that motion. See Dkt. No. 16-4 at 2-9. The Court rejects Defendant's contention that such time expenditures were unreasonable because Plaintiff could have merely consented to the remand. Plaintiff had the right to litigate this case, including challenging the remand when there would be, at the very least, a six-month delay before the ABCMR addressed his claims. Accordingly, the Court finds that Plaintiff's counsel expended a reasonable amount of time in commencing this action and litigating it through the remand.
2. Reasonable hourly rate
Pursuant to the EAJA, "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)(ii). The Supreme Court has clarified that "qualified attorneys for the proceedings" must "refer[ ] to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question - as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation." Pierce v. Underwood, 487 U.S. 552, 572, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). According to the Supreme Court, examples of such "distinctive knowledge" include attorneys who practice patent law or have knowledge of a foreign law or language. See id. "Where such qualifications are necessary and can be obtained only at rates in excess of the [statutory] cap, reimbursement above that limit is allowed." Id.
The parties dispute whether Plaintiff's counsel's expertise in military law warrants an increase in the awarded hourly rate. Specifically, Plaintiff requests that his counsel be awarded $350 per hour, which is the prevailing rate for an experienced partner in the Northern District of New York. See Dkt. No. 16-1 at 8-9. Plaintiff argues that, in addition to being a partner at Hancock Estabrook, LLP with 16 years of experience in federal civil litigation, his counsel also has experience in Army rules and regulations, military law and procedural rules, federal administrative law, and constitutional law as it is uniquely applied to military members. See id. at 9.
Defendant does not oppose a cost-of-living increase, as measured by the Consumer Price Index, applicable to the years in which Plaintiff's attorney performed legal work for him. See Dkt. No. 18-1 at 19 n.4. However, Defendant opposes Plaintiff's counsel's proposed rate of $350 per hour, which is "a 280% increase over the statutory cap" of $125 per hour. See id. at 19-20. According to Defendant, Plaintiff bears the burden of producing appropriate evidence to support the requested increase from the presumptive statutory cap. See id. at 20 (citing Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016)). In this case, Defendant argues, Plaintiff fails to identify any special factors that would warrant an increase in the hourly rate, and his contention that there was limited availability of qualified attorneys is misplaced because a qualified attorney does not necessarily have to be an expert or specialist. See id. at 21-22.
The Second Circuit has not ruled on the issue of whether legal services pertaining to military matters constitute a practice specialty warranting excess fees under the EAJA. As far as this Court has found, only district courts in the D.C. Circuit have addressed this issue, and they have "rejected the assertion that expertise in military administrative law is a basis for a fee enhancement." Doe v. Rumsfeld, 501 F. Supp. 2d 186, 192 (D.D.C. 2007) (citing Lynom v. Widnall, 222 F. Supp. 2d 1, 6-7 (D.D.C. 2002)) (parenthetical omitted). Additionally, there is one instance of a district court in the Ninth Circuit that remarked in dictum that, "[e]ven if military law were a specialty, the court must consider the number of attorneys qualified in military law practice," and the plaintiff in that case "ha[d] not shown a dearth of attorneys capable of adequately representing [him]." Poole v. Rourke, 779 F. Supp. 1546, 1570 (E.D. Cal. 1991).
In considering Plaintiff's counsel's declaration and contemporaneously maintained time records, the Court finds that the work performed in this case did not demand knowledge or skills that most attorneys do not possess. The Court expects that most attorneys could read a decision from an administrative agency, draft a complaint alleging violations of the Administrative Procedures Act, and seek a declaratory judgment. The Court further expects that most attorneys could adequately respond to the agency's motion for a voluntary remand and petition the Court for attorneys' fees and costs. Although Plaintiff's counsel's experience in military law surely helped him in representing Plaintiff, the Court finds that Plaintiff has not met his burden to show that his counsel's expertise in military law is a specialized skill warranting an increase in the hourly rate above the cap set forth in the EAJA. As such, the Court holds that Plaintiff's counsel is entitled to a fee reflecting the statutory cap of $125 per hour, plus an appropriate cost-of-living adjustment.
3. Conclusion
In total, when applying the lodestar method, the Court finds that Plaintiff is entitled to an award of attorney's fees in the amount of $125 per hour for 87.3 hours, as reflected in his attorney's time sheet attached to Plaintiff's motion for attorneys' fees. Defendant does not oppose a cost-of-living increase, as measured by the Consumer Price Index, applicable to the years in which Plaintiff's attorney performed legal work. Using the Consumer Price Index, Plaintiff would be entitled to an award of attorney's fees calculated at the following hourly rates: $205.25 per hour for work performed in 2019, $207.78 per hour for work conducted in 2020, and $217.54 per hour for work conducted in 2021. Accounting for the cost-of-living increase, the Court finds that Plaintiff is entitled to $18,341.26 in attorneys' fees. Plaintiff is also entitled to $428.70 in costs which his attorney expended in this action, comprised of a $400 filing fee, $17.60 in costs related to serving the summons and complaint on Defendant, and $11.10 in photocopying fees. See Dkt. No. 16-1 at 10. Thus, Plaintiff is entitled to a total award of $18,769.96.
The Ninth Circuit posts the statutory maximum rates under the EAJA accounting for increases in the cost-of-living, and Plaintiff relied on these numbers in his Memorandum of Law. Defendant did not oppose those rates, and the Court adopts them here. See https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/.
This constitutes 5 hours at a rate of $205.25 per hour (equaling $1,026.25), 60.3 hours at $207.78 per hour (equaling $12,529.13), and 22 hours at $217.54 per hour (equaling $4,785.88). See Dkt. No. 16-4.
III. CONCLUSION
After carefully considering the entire file in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for attorneys' fees and costs, see Dkt. No. 16, is GRANTED to the extent that the Court awards Plaintiff $18,769.96 in such fees and costs under the EAJA.