Opinion
No. 1:02CV00042 JFF.
August 30, 2004
ORDER
Plaintiff has filed a motion for attorney's fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff's counsel requests attorney's fees in the amount of $3,220.00, representing 23.00 hours of work at an hourly rate of $140.00, and $50.15 in costs. Plaintiff's counsel spent 5.25 hours reviewing and sending letters and reviewing orders. The Court finds that the time spent is excessive and reduces the compensable hours to 21.00 hours. The Court finds that the requested hourly rate of $140.00 is reasonable.
Plaintiff's counsel requests reimbursement for postage expenses in the amount of $13.65 and for copying costs in the amount of $36.50. Defendant asserts that because Plaintiff was granted leave to proceed in forma pauperis by this Court, counsel is barred from recovering these amounts. Defendant argues that the EAJA permits an award of costs against the United States "except as otherwise specifically provided by statute," 28 U.S.C. § 2412(a)(1), and that the statute permitting filings in forma pauperis, 28 U.S.C. § 1915(f)(1), specifically bars an award of costs against the United States.
The EAJA, 28 U.S.C. § 2412, provides in pertinent part:
(a)(1) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
. . .
(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in additions to the costs which may awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
Title 28 U.S.C. § 1915 provides in pertinent part:
(f)(1) Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred. . . .
A number of courts have concluded that § 1915(f)(1) bars an award of costs against the United States in favor of a social security plaintiff proceeding in forma pauperis. Maida v. Callahan, 148 F.3d 190, 193 (2nd Cir. 1998); Chambers v. Barnhart, 355 F.3d 1261, 1262-63 (10th Cir. 2004); Sandoval v. Apfel, 86 F.Supp.2d 601, 611-13 (N.D. Tex. 2000); Hiciano v. Apfel, 2002 U.S. Dist. LEXIS 9349, at 8, 80 Soc. Sec. Rep. Serv. 492 (S.D.N.Y. May 29, 2002); Adorno v. Barnhart, 2003 U.S. Dist. LEXIS 11801, at 7-8, 88 Soc. Sec. Rep. Serv. 721 (S.D.N.Y. July 11, 2003); Liberman v. Barnhart, 232 F.Supp.2d 18, 20 (E.D.N.Y. 2002). Two United States District Judges in the Southern District of New York have held that the term "costs," as used in § 1915(f)(1), includes only those items listed as costs in 28 U.S.C. § 1920 and that a prevailing social security litigant proceeding in forma pauperis may recover under the EAJA reasonable expenses not listed as costs in § 1920.Hiciano, 2002 U.S. Dist. LEXIS 9349, at 8 (United States District Judge Denise Cote); Adorno, 2003 U.S. Dist. LEXIS 11801, at 8 (United States District Judge Harold Baer, Jr.).
Section 1920 lists the following items as costs:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Based upon the foregoing authorities, the Court finds that a prevailing social security litigant proceeding in forma pauperis may not recover, pursuant to the EAJA, costs listed in § 1920. He may, however, recover reasonable expenses not defined as costs in § 1920.
In the Eighth Circuit, reasonable expenses under the EAJA include telephone, postage, and travel expenses — items which are not listed as costs in § 1920. Kelly v. Bowen, 862 F.2d 1333, 1335-36 (8th Cir. 1988). The Court finds that Plaintiff's counsel is entitled to postage expenses in the amount of $13.65. Counsel is not entitled to copying costs as such costs are listed in § 1920. 28 U.S.C. § 1920(4).
The Court finds that Plaintiff's attorney is entitled to an attorney's fee in the amount of $2,940.00 (21.00 hours × $140 per hour) and expenses in the amount of $13.65 pursuant to the EAJA. The Defendant should certify said award and pay the Plaintiff's attorney these amounts.
IT IS SO ORDERED.