Summary
denying fees where conflicting evidence warranted remand
Summary of this case from Youngblood v. ColvinOpinion
No. 00 CIV. 4317 (DLC).
August 16, 2001
Wendy Brill, New York, NY, Attorney for Plaintiff.
Susan D. Baird, New York, NY, Attorney for Defendant.
MEMORANDUM ORDER
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) ("EAJA"), plaintiff Carmen Tavarez ("Tavarez") moves for an award of attorney's fees as a "prevailing party" in this Social Security appeal. For the reasons stated, the motion is granted in part.
BACKGROUND
Tavarez applied for Supplemental Security Income ("SSI") benefits on March 12, 1997. The application was denied initially, and by an Administrative Law Judge ("ALJ") after a hearing held on June 29, 1998. Tavarez requested Appeals Council review on September 21, 1998. The Council denied her request for review on April 21, 2000, and on June 12, 2000, plaintiff filed this action seeking reversal of a final decision by the Commissioner
On October 10, 2000, the Commissioner filed an answer and the administrative record. By letter dated October 19, 2000, the commissioner offered to remand this action to the Commissioner for further administrative proceedings. The letter invited Tavarez to "[p]lease call if you have any questions." Tavarez rejected the offer of remand on November 7, 2000, and on November 20, 2000, moved for judgment on the pleadings, or in the alternative, for remand to the Commissioner. Tavarez's counsel did not request that the proposed stipulation and order of remand be modified in any way. The Commissioner cross-moved for remand.
According to the Government, the offer of remand was actually made on October 23, 2000.
By Opinion and Order dated March 9, 2001, the Court found that the ALJ's failure to address Tavarez's subjective descriptions of pain and his failure to explain adequately his decision not to credit Tavarez's psychiatrist's reports, amounted to legal error. The Court also found that the record contained conflicting evidence of Tavarez's physical and mental impairments, and that a remand was appropriate to allow the ALJ to evaluate Tavarez's testimony along with all of the other relevant materials. The Court therefore remanded the case pursuant to sentence four of 42 U.S.C. § 405 (g) for further administrative proceedings.
DISCUSSION
Section 2412(d) states, in relevant part, that:
[e]xcept as otherwise specifically provided by statute, 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 (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412 (d)(1)(A) (emphasis supplied). The following three elements must therefore be satisfied for a court to award attorney's fees under Section 2412(d):
(1) that the claimant be a 'prevailing party'; (2) that the Government's position was not 'substantially justified'; [and] (3) that no 'special circumstances make an award unjust'.Kerin v. United States Postal Serv., 218 F.3d 185, 189 (2d Cir. 2000) (citation omitted)
The Supreme Court has held that a party who wins remand of a Social Security appeal pursuant to sentence four of 42 U.S.C. § 405 (g) is a "prevailing party." See Shalala v. Schaefer, 509 U.S. 292, 300 (1993). "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.'" Commodity Futures Trading Comm'n v. Dunn, 169 F.3d 785, 786 (2d Cir. 1999) (citation omitted).
Here, the Commissioner does not argue that his position was substantially justified. Even if the Government's position was not substantially justified, however, an award of fees may be denied or reduced pursuant to the EAJA if "special circumstances" would make an otherwise proper award "unjust." 28 U.S.C. § 2412 (d)(1)(A). Although these terms are not statutorily defined, the Second Circuit has held that equitable considerations should inform a court's decisions in this area. See Oquachuba v. Immigration and Naturalization Serv., 706 F.2d 93, 98-99 (2d Cir. 1983). Therefore, if "all of the fees were expended on discrete efforts that achieved no appreciable advantage, and where the claim of the prevailing part[y] rests largely on a result to which the claimant made no contribution, a district court may consider whether special circumstances render an award of attorney's fees less just." United States v. 27.09 Acres of Land, 43 F.3d 769, 773 (2d Cir. 1994). See also Sands v. Runyon, 28 F.3d 1323, 1333 (2d Cir. 1994) (affirming reduction of fees for work on unsuccessful and meritless claims).
The facts of this case justify a reduction in the fees sought by plaintiff to (1) those hours expended prior to the Commissioner's offer of remand on October 23, 2000, and (2) those hours spent in connection with the present fee application. Tavarez rejected the Commissioner's offer to remand her case. By rejecting the Commissioner's proposal to remand the case for further proceedings and unsuccessfully moving for judgment on the pleadings, plaintiff not only failed to gain any relief beyond that initially sought and ultimately given, but also contributed to the delay of that relief.
Plaintiff rejected the Commissioner's October 23 offer for remand and spent an additional 21.25 hours litigating this case. Tavarez argues that she was justified in seeking reversal rather than remand because the Social Security Administration would not accept any condition or specific directives in a remand order. Not only did plaintiff's counsel not request that any conditions or specific directives be included in the proposed remand order, but counsel for the Government asserts that she on occasion has entered stipulations that give specific directives to the Social Security Administration concerning proceedings on remand.
Plaintiff argues that because the Court's March 9, 2001 Opinion and Order specified the error that was the ground for remand and directed that the ALJ should evaluate plaintiff's testimony and other materials and, if necessary, update medical evidence in order to evaluate the application for benefits, she received an outcome beyond that offered by the Commissioner. This argument is insufficient to justify fees for plaintiff's opposition to the motion for remand in the absence of evidence that she sought a remand on these terms from the Government and was rebuffed.
Plaintiff also suggests that a detailed remand order was necessary because when an order "for further administrative proceedings is issued, the ALJ does not know what to do with the case on remand. According to the Government, however, this suggestion is contrary to agency practice, in which the Appeals Council issues a detailed remand order to the Administrative Law Judge directing areas of development required on remand."
Finally, plaintiff contends that she was justified in rejecting the Government's proposed remand because of the amount of time it takes the Appeals Council to process requests for review. Plaintiff cites statistics which show that in 1997, the Appeals Council averaged 420 days to process review requests. The Government asserts that plaintiff's statistics from 1997 are out of date, and, further, that the Appeals Council instituted a "process improvement action plan" in March 2000, to reduce the amount of time it takes to process claims. See Appeals Council Process Improvement, available at http://www.ssa.gov/reports/acpi. According to the Government, the processing time for claims for fiscal year 2001 was estimated to be 160 days. Id.
In sum, plaintiff's proffered explanations do not explain how engaging in motion practice furthered the goal of expediency. Moreover, plaintiff should have realized that the conflicting evidence in the record warranted remand, see Clark v. Commissioner of Social Sec., 143 F.3d 115, 118 (2d Cir. 1998), and could not have reasonably expected to obtain an outright reversal of the agency decision. See Collado v. Apfel, No. 99 Civ. 4110 (DLC), 2000 WL 1277595, at *3 (S.D.N.Y. Sept. 7, 2000) (where claimant rejected Commissioner's offer to remand, hours spent opposing Commissioner's motion to remand excluded from fee calculation);McLaurin v. Apfel, 95 F. Supp.2d 111, 115-16 (E.D.N.Y. 2000) because claimant unreasonably opposed Commissioner's offer to remand case, reduction in claimant's attorney fee request was warranted). Accordingly, the Court concludes that the time that plaintiff expended opposing the Commissioner's motion to remand and bringing a motion for judgment on the pleadings was excessive and unnecessary, and that these hours should be excluded from the fee calculation.
Plaintiff's reliance on Penrod v. Apfel, 54 F. Supp.2d 961 (D. Ariz. 1999), Ferguson v. Apfel, No. Civ. A. CV-98-3728 DG, 2000 WL 709.018 (E.D.N.Y. Apr. 17, 2000), and Pazo v. Apfel, 98 Civ. 5535, slip op. (E.D.N.Y. Mar. 30, 2001), does not change this conclusion. In Penrod, the court found that it was the Commissioner, who did not file his motion to remand until two months after plaintiff filed her motion for summary judgment, and not the plaintiff, who "unnecessarily prolonged the proceedings." Penrod, 54 F. Supp. 2d at 963. In Ferguson, the Commissioner apparently conceded that no special circumstances existed making an award of attorney's fees unjust, such that the court's opinion was confined to the issue of the reasonableness of fees sought by plaintiff. See Ferguson, 2000 WL 709018, at *2. Moreover, the court stated that "when the particular facts of a case warrant it . . ., reducing a claim for unreasonably expended billable hours in light of an offer to remand would be proper." Id. In Pazo, the plaintiff represented that he had asked for directives to be included in the remand order, and that the request was rejected. Pazo slip op. at 2.
The listing of attorney hours submitted by plaintiff in connection with this motion indicates that prior to the Commissioner's offer to remand, plaintiff's attorney spent 5.75 hours working on this case; she spent an additional one and one half hours in conjunction with the instant fee application. The Government does not object to the reasonableness of these expenditures of time on the tasks specified, provided that plaintiff's counsel submit contemporaneous time records.
Accordingly, upon the submission of contemporaneous time records, the Court awards plaintiff attorney's fee in the amount of $906.25.
The EAJA currently imposes a $125 per hour cap on attorney fees, but the Court in its discretion may increase the fee if a cost-of-living increase or special factor warrants such deviation. See 28 U.S.C. § 2412 (d)(2)(A). The plaintiff has not provided any basis to support an award above the cap.