Holden v. Bowen
| Decision Date | 23 July 1986 |
| Docket Number | Civ. A. No. C84-548. |
| Citation | 668 F. Supp. 1042 |
| Parties | Norma HOLDEN, et al., Plaintiffs, and State of Ohio, Through Richard F. Celeste, Governor, Plaintiff-Intervenor, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
David B. Dawson, Louise McKinney, Carolyn Carter, Ann Porath, Paula Gellman, Fred P. Schwartz, Cleveland, Ohio, for plaintiffs.
Rita S. Eppler, Asst. Atty. Gen., Columbus, Ohio, for plaintiff-intervenor.
Rita S. Eppler, Asst. Atty. Gen., Columbus, Ohio, Kathleen A. Sutula, Asst. U.S. Atty., Cleveland, Ohio, for defendant.
On August 27, 1985, this Court ruled that the prevailing plaintiffs in this social security disability class action were entitled to attorneys' fees, costs and expenses from the Secretary of Health and Human Services ("Secretary")1 under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Holden v. Heckler, 615 F.Supp. 686 (N.D. Ohio 1985). By agreement of the parties, that opinion dealt only with the threshold question of whether any fees should be awarded. Id. at 687 n. 1. After this Court sustained the plaintiffs' right to EAJA fees, costs and expenses, the Secretary was permitted discovery with respect to the amount sought, id. at 698, and plaintiffs submitted a supplemental application for additional fees.
Plaintiffs now seek attorneys' fees, costs and expenses totaling $251,789.15.2 The Secretary objects to the hourly rates sought for counsel, law clerks and paralegals, to the number of hours for which compensation is sought, and to any compensation for certain tasks performed by counsel. The Secretary also argues that some of the costs and expenses sought by plaintiffs are not available under the EAJA. Plaintiffs have submitted voluminous materials in support of their application and both sides have thoroughly briefed the relevant legal issues. For the reasons set forth below, plaintiffs' application — with a slight reduction for excessive and duplicative work on small portions of this case — is approved.
The plaintiffs were represented by David B. Dawson, Esq., Louise McKinney, Esq. and Carolyn L. Carter, Esq. of The Legal Aid Society of Cleveland ("Legal Aid"); Mark J. Valponi, Esq. and John Habat, Esq. of the Cleveland law firm of Kelley, McCann & Livingstone ("Kelley, McCann"); and, with respect to the fee application itself, by Fred P. Schwartz, Esq. of the Cleveland law firm of Hahn, Loeser, Freedheim, Dean & Wellman ("Hahn, Loeser"). The application as supplemented seeks compensation for the following work:
Attorneys' Fees, Costs and Expenses
Through May 20, 1985
Fees
Hours × Rate = Amount
Mark Valponi 346.1 $75 $ 25,957.50
John Habat 55.1 $65 3,581.50
David Dawson 894.8 $125 111,850.00
Louise McKinney 250.7 $100 25,070.00
Carolyn Carter 283.4 $125 35,425.00
Dean della Volpe 115.1 $30 3,453.00
Toll-free number 59 hours, 1 min. 3,283.163
answering ___________
Subtotal Fees: $208,620.16
Costs and Expenses
Expenses incurred by Kelley, McCann & $ 543.03
Livingstone
Deposition costs and other expenses 353.59
Travel costs 73.58
Toll-free number costs 1,716.77
Computer-assisted legal research costs 577.22
Mailing costs 282.45
Other long-distance telephone costs 621.48
___________
Subtotal Costs and Expenses: $ 4,171.12
Subtotal Fees, Costs and Expenses
___________
Through May 20, 1985 $212,791.28
Attorneys' Fees, Costs and Expenses
After May 20, 1985
Fees
Hours × Rate = Amount
Valponi 25 $75 $ 1,875.00
Dawson 94.5 $125 11,625.00
(less 1.5 hours erroneously
included in original application
$11,812.50 - 187.50)
McKinney 42.5 $100 4,250.00
Carter 28.1 $125 3,512.50
Bill Matthews 93.5 $30 2,805.00
(law clerk)
Fred Schwartz 120 $94.09 11,290.80
Hahn, Loeser law 6.6 $30 198.00
Clerks and paralegals
__________
Subtotal Fees: $ 35,556.30
Costs and Expenses
Deposition transcript of David Dawson $ 172.40
Long-distance telephone hotline 2,785.77
Computer-assisted legal research costs 396.08
Postage 3.50
Photocopying costs 83.82
___________
Subtotal Costs and Expenses: $ 3,441.57
Subtotal Fees, Costs and Expenses
___________
After May 20, 1985 $ 38,997.87
TOTAL Fees, Costs and Expenses $251,789.154
As noted, the Secretary's objections to the fee application fall into three categories: hourly rates; number of compensable hours; and costs and expenses.
The Secretary does not challenge the hourly rates sought by the Kelley, McCann counsel, Valponi ($75) and Habat ($65), but does contest the amounts sought by Legal Aid counsel, Dawson, McKinney and Carter; by Hahn, Loeser's Schwartz for his work on the fee application; by Legal Aid and Hahn, Loeser for work by law clerks and paralegals; and by all counsel for time spent answering the toll-free telephone line provided for class members by order of this Court. Holden v. Heckler, 584 F.Supp. 463, 496 (N.D.Ohio 1984) (preliminary injunction order ¶ 7(a)).
The Secretary claims that the $125 hourly rate sought by Dawson and Carter and the $100 rate sought by McKinney are precluded by 28 U.S.C. § 2412(d)(2)(A)(ii), which provides in pertinent part:
Attorney fees shall not be awarded in excess of $75 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.
Plaintiffs assert that the higher hourly rates are justified by the "limited availability" in the Cleveland area of attorneys with Dawson and McKinney's expertise in disability law and Carter's knowledge of complex litigation.
Uncontroverted affidavits establish that Dawson, McKinney and Carter are among the leading practitioners of poverty law in the Cleveland area and possess lawyering skills unique not only in the local bar generally but even among the subset of attorneys who practice social security disability law. Dawson has represented individuals in disability cases since 1974 and has specialized in the field since 1978; he serves as an adviser and consultant on disability issues for attorneys at Legal Aid and at legal services offices throughout Ohio, conducts training seminars for legal services attorneys, served on Governor Richard Celeste's Task Force on Continuing Disability Investigations, and acted as co-counsel on two other disability class actions. McKinney has litigated numerous disability cases and trained and advised other legal services attorneys; she also has lectured on disability issues at a number of colleges and universities in northern Ohio. Carter has extensive experience with complex litigation and federal civil rights cases.
C. Lyonel Jones, the director of Legal Aid, demonstrated by affidavit that the skills of these three counsel were crucial to swift and successful prosecution of this class action:
The attorneys representing the plaintiffs class in this action provide a combination of background and skill that would have been available from few, if any, other sources in Ohio. The effective prosecution of Holden v. Heckler required specialized expertise in Social Security issues, such as that which David Dawson and Louise McKinney possess. In addition, it required ... experience in complex federal litigation, class action issues, and jurisdictional issues, such as Carolyn Carter possesses. Finally, it required an organization that was willing to commit significant time and resources to the case, with any ultimate recovery dependent upon an EAJA fee petition....
Franklin Hickman, a private attorney with extensive experience in disability cases, demonstrated the corollary to Jones' proposition — namely, that the average disability law practitioner could not have handled this case nearly as well as the Legal Aid attorneys did. He stated:
I would not have been able to represent the class in the Holden case while in private practice unless I were working with Legal Aid Society attorneys and relying on their resources. To my knowledge there are few, if any, private attorneys in the Cleveland area who would assume full responsibility for representation in a case like the Holden case.
Hickman also attested to the reasonableness of the hourly rates sought, as did David Weiner, a Hahn, Loeser partner specializing in litigation.
The Secretary established by affidavit that since 1983 some 330 attorneys have filed social security disability actions in the Northern District of Ohio; this statistic, it is alleged, demonstrates that there is not a limited availability...
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