Gonzalez v. Bowen, 84 Civ. 0110(MEL).
Decision Date | 23 December 1986 |
Docket Number | No. 84 Civ. 0110(MEL).,84 Civ. 0110(MEL). |
Citation | 650 F. Supp. 128 |
Parties | Tomasina GONZALEZ, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. |
Court | U.S. District Court — Southern District of New York |
Marshall Green, Legal Aid Society, Bronx, N.Y. (Stephen Loffredo, of counsel), for plaintiff.
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Rosemarie E. Matera, Sp. Asst. U.S. Atty., Annette H. Blum, Chief Counsel, Region II, and Peter O'Malley, Asst. Regional Counsel, Office of General Counsel, Dept. of Health and Human Services, of counsel), for defendant.
In Gonzalez v. Bowen, 84-0110 (S.D.N.Y. Apr. 23, 1986) (Gonzalez I) Available on WESTLAW, DCTU database, plaintiff Tomasina Gonzalez prevailed on the review of a final decision of the defendant, the Secretary of Health and Human Services ("the Secretary"), denying her application for social security benefits. Upon the recommendation of the Honorable Sharon E. Grubin, Magistrate, I reversed the decision of the Health and Human Services Appeals Council ("Appeals Council"), which had refused to adopt an administrative law judge's finding that Gonzalez was disabled. The grounds of reversal were that the Appeals Council decision was not supported by substantial evidence. The case was remanded to the Secretary for calculation and award of benefits.
Gonzalez now moves pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (Supp. III 1985) ("EAJA") for attorney's fees in the amount of $6,380.37. Gonzalez asserts that the government's position in the earlier stages of the litigation was not substantially justified because of the finding that the Appeals Council's decision was not supported by substantial evidence. In opposition the Secretary argues that the government's position was substantially justified in spite of the finding of lack of substantial evidence. In the alternative, the Secretary claims that the time for which Gonzalez requests attorney's fees is excessive and that the EAJA limits Gonzalez to an hourly rate lower than she has requested.
Under the EAJA, the government has the burden of demonstrating the substantial justification of its position, Dubose v. Pierce, 761 F.2d 913, 917 (2d Cir.1985); Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir.1983), and a "`strong showing'" must be made to meet that burden, Environmental Defense Fund, 722 F.2d at 1085 ( ).
H.R.Rep. No. 120, 99th Cong., 1st Sess. 9, 9-10 (1985), reprinted in 1985 U.S.Code Cong. & Ad.News 132, 138 (footnotes omitted), casting doubt on the continued viability of the "reasonableness" standard, see Panzarino v. Bowen, 84-7106 (S.D.N.Y. July 14, 1986) Available on WESTLAW, DCTU database. (available on LEXIS Genfed library, courts file). The Court of Appeals for this circuit has not yet ruled on whether the language quoted above requires the application of a more rigorous standard for "substantial justification" than "reasonableness," and courts that have considered the issue have reached different conclusions. Some have interpreted the legislative history as clearly stating that the standard must be more than reasonableness. See, e.g., Lee v. Johnson, 799 F.2d 31, 38 n. 7 (3rd Cir.1986) ( ); United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1317-1318 (8th Cir.1986) ( ); Gavette v. Office of Personnel Management, 785 F.2d 1568, 1578-79 (Fed.Cir.1986) (same); Panzarino, supra ( ); Mangognia v. Heckler, No. 84 C 10325 (E.D.Il. July 28, 1986) Available on WESTLAW, DCTU database (available on LEXIS, Genfed library, court file) (in 1985 amendments "Congress clarified that `substantial justification' means more than merely reasonable"). Other courts have found the legislative history, taken as a whole, to be inconclusive and contradictory on this issue, and have adhered to the previously applied standard of reasonableness because the legislative history is puzzling. The unchallenged portion of the House Report indicates that government action must be more than merely reasonable to be substantially justified. The co-sponsors' comments during the floor debates, by contrast, indicate that an action may be substantially justified even though it is arbitrary and capricious. We see no way to harmonize these positions.
Russell v. National Mediation Board, 775 F.2d 1284, 1289 (5th Cir.1985); see also Mager v. Heckler, 621 F.Supp. 1009, 1011-1012 (D.Col.1985) ( ).
However, whether under the 1985 amendments to the EAJA the standard for substantial justification is now more than reasonableness, or whether the standard to be applied is still reasonableness, it is clear that in this case the government has failed to meet its burden concerning its position in this litigation.1 In Gonzalez I it was determined, upon a de novo review of Magistrate Grubin's recommendations, that the Appeals Council's decision was not supported by substantial evidence.2Gonzalez I, slip op. at 2. The Appeals Council's conclusions about Gonzalez' reason for stopping work and about her medical condition were found to be "speculative at best" and "without evidentiary foundation," id. at 2, and its rejection of Gonzalez' testimony regarding her functional limitations was found to be "in large part unjustified," id. at 3. The House Report accompanying the 1985 amendments states that "agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act" except under "the most extraordinary special circumstances." H.R.Rep. 120 at 9-10, reprinted in 1985 U.S.Code Cong. & Ad.News at 138. Although some courts have declined to accept this statement as a per se rule, pointing out that this portion of the House Report was contradicted and criticized by co-sponsors of the EAJA on the floor of Congress as overly broad, see, e.g., Russell, 775 F.2d at 1289, in a case such as this, where there is "simply `little or no evidence supporting the government's position,'" see Correa v. Heckler, 587 F.Supp. 1216, 1223-24 (S.D.N.Y.1984) (quoting Hornal v. Schweiker, 551 F.Supp. 612, 617 (M.D. Tenn.1982)), it is clear that the government's position was unreasonable and that, accordingly, Gonzalez is entitled to an attorney's fee award.
Gonzalez requests $6,380.37 in attorney's fees, which represents a total of 70 hours and 55 minutes of work at $89.97 per hour. Declaration of Stephen Loffredo ¶ 5 and Exhibit A (July 15, 1986) ("Loffredo Declaration"). The Secretary objects that both the number of hours and the hourly charge are excessive. I conclude that the amount of the award requested is reasonable.
Gonzalez' counsel has provided the required contemporaneous time records to support his request for attorney's fees for 70 hours and 55 minutes of work. See New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). The request is reasonable in light of the fact that (1) the Secretary's memorandum of law to Magistrate Grubin required a reply, (2) the Secretary's filing of objections to the Magistrate's Report and Recommendation required plaintiff to prepare and submit responding papers and (3) the Secretary's refusal to negotiate an attorney's fee caused Gonzalez' counsel to expend additional time in preparing the papers in support of the present motion. Loffredo Declaration at ¶ 4 and Exhibit C; Memorandum of Law in Support of Plaintiff's Motion for Attorney's Fees at 11-12 (July 15, 1985). Moreover, the time expended by counsel compares favorably to the number of hours for which attorney's fees have been awarded in other social security cases. See, e.g., Jackson v. Heckler, 629 F.Supp. 398, 406 (S.D.N.Y.1986) ( ); Tavarez v. Heckler, 610 F.Supp. 1059, 1964 (S.D.N.Y. 1985) ( ); Velazquez v. Heckler, 610 F.Supp. 328, 332 (S.D.N.Y. 1984) ( ).
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...numerous cases which support the view that the rate can be increased based on the cost-of-living increase. See e.g., Gonzalez v. Bowen, 650 F.Supp. 128 (S.D.N.Y.1986); Jackson v. Heckler, 629 F.Supp. 398 (S.D.N.Y.1986); and Fleming v. Bowen, 637 F.Supp. 726 (D.D.C.1986). Cost of living incr......
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Carlson v. Astrue, 4:05-cv-00658-RP-TJS.
...case in this district. Other cases can be found which required hours comparable to those claimed here. See, e.g. Gonzalez v. Bowen, 650 F.Supp. 128, 131 (S.D.N.Y.1986) in which EAJA fees were awarded for 70 hours and 55 minutes of work. The Court cited other cases in it's district in which ......