Pribek v. SECRETARY, D. OF HEALTH & HUMAN SERV.

• Decision Date: 07 August 1989
• Docket Number: No. CIV-87-1035E.,CIV-87-1035E.
• Citation: 717 F. Supp. 73
• Parties: Frank PRIBEK, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Western District of New York

717 F. Supp. 73

Frank PRIBEK, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. CIV-87-1035E.

United States District Court, W.D. New York.

August 7, 1989.

John Doe, for plaintiff.

Kathleen Mehltretter, Asst. U.S. Atty., Buffalo, N.Y., for defendant.

MEMORANDUM and ORDER

ELFVIN, District Judge.

The abovenamed plaintiff prevailed in this action for Social Security benefits when this Court entered judgment in his favor May 18, 1989, remanding the matter to the defendant Secretary of Health and Human Services ("the Secretary") solely for the calculation and payment of benefits. See McGill v. Secretary of Health and Human Services, 712 F.2d 28, 31-32 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984) (an applicant for disability benefits "prevails" when he is determined to be entitled to such). Presently, the plaintiff has moved, by his counsel, for attorney's fees in the amount of $8,114.25 to be paid by the government pursuant to the Equal Access to Justice Act ("the EAJA"), 28 U.S.C. § 2412, or, alternatively, in the amount of $7,852.50 to be paid from his past due withheld benefits pursuant to the Social Security Act ("the SSA"), 42 U.S.C. § 406(b).¹

The government has informed this Court that it believes the plaintiff's counsel should receive $3,500 as a reasonable fee under the EAJA and that (following discussions) it finds him to be agreeable to receiving such amount, even though such represents less than half of what had been requested under the EAJA. See Letter from Assistant United States Attorney Kathleen M. Mehltretter to this Court (June 16, 1989). A then-associate of plaintiff's counsel appeared before this Court June 26th and confirmed that said counsel was willing to accept $3,500 from the government under the EAJA in disposition of the fee petition.

This Court has previously indicated that the determination of a reasonable fee under the EAJA "is for the court rather than the parties by way of stipulation." McNeill v. Secretary of Health and Human Services ("McNeill I"), unpublished opinion, CIV-87-1498E, 1989 WL 39449 (W.D.N.Y. April 20, 1989), at pp. 3-4. A court may reduce or deny altogether a fee request where it appears that the prevailing party has "unduly and unreasonably protracted" the litigation, and a court must not grant an award in excess of $75 per hour without determining that an increase in the cost of living since the enactment of the EAJA, or a "special factor," merits an augmented rate. 28 U.S.C. §§ 2412(d)(1)(C) and 2412(d)(2)(B).

Here, the attorney attests to having worked 87.25 hours on the substance of this action and has supplied this Court with an itemized time log describing his services. See Plaintiff's Counsel's Affidavit (sworn to May 26, 1989), ¶¶ 11, 16(c) and exhibit thereto. He had sought $93 per hour in his motion papers, citing to the decision in Parks v. Bowen, 839 F.2d 44 (2d Cir.1988), in which an attorney in a case before the United States District Court for the Northern District of New York was awarded fees at such rate under the EAJA. Conversely, under the stipulated request for $3,500 in fees, his rate of compensation would be approximately $40 per hour.²

This Court is of the view that a stipulated award of $3,500 under the EAJA would be improper in this case. Inferences which might be derived from a perfunctory award of such amount are (1) that the entire 87.25 hours said to have been worked were reasonably necessary and (2) that $40 per hour is a reasonable fee for such work. Neither inference has objective validity, and this Court will therefore exercise its discretion to make an independent determination regarding what constitutes a reasonable EAJA fee herein. Forty hours more adequately reflects, in this Court's experience, a reasonable expenditure of time on a case of this sort, which is unextraordinary in all respects.³Compare McNeill I, supra (23.2 hours, including one hour seeking fees); Cavanaugh v. Sullivan, CIV-83-1095E, 1989 WL 41732 (W.D. N.Y. April 25, 1989) (35.75 hours); Kurowski v. Bowen, CIV-84-1031E, 1988 WL 125191 (W.D.N.Y. November 21, 1988) (32.8 hours); Monaco v. Secretary of Health and Human Services, CIV-83-1397E, 1987 WL 13512 (W.D.N.Y. July 3, 1987) (58.25 hours); Elliott v. Bowen, CIV-83-271E, 1987 WL 8817 (W.D.N.Y. April 2, 1987) (60 compensable hours requested; 48.7 hours deemed reasonable); Breneman v. Bowen, CIV-84-479E, 1987 WL 6776 (W.D.N.Y. January 29, 1987) (52.3 hours claimed; 40 hours deemed reasonable). Additionally, the maximum statutory rate of $75 per hour better reflects the reasonable value of an attorney's services in this District. See Bar Association of Erie County (N.Y.), Results: Fall 1985 Membership Survey, at p. 8.⁴ Hence, attorney's fees will be awarded to the plaintiff's counsel in the amount of $3,000 (plus disbursements in the amount of $47.50) under the EAJA.

Such finding, however, cannot finish the consideration of the instant motion for attorney's fees. In Wells v. Bowen, 855 F.2d 37 (2d Cir.1988), it was held that an attorney working under a contingent fee arrangement in an action for disability benefits best represents his client by moving for fees under both the EAJA and the SSA. Id., at 42.⁵ The lesser of any two amounts so awarded goes to the attorney's client. Ibid. Accordingly, this Court has construed applications like the instant one, which are nominally presented in the alternative, as actually being dual fee petitions. McNeill I, supra, at p. 1 fn. 1; see also Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986).

The plaintiff's attorney has not purported to waive his secondary request for fees to be paid from the plaintiff's withheld past due benefits under section 406(b) of the SSA, and this Court would be disinclined to grant such a waiver request if made. Because the lesser of any two fee awards belongs to the disabled client and not to his attorney, permitting a waiver of an award under the SSA in this case might work an injustice to the plaintiff by depriving him of his recovery of a portion of his withheld benefits equalling the lesser of dual fee awards.⁶

Therefore, this Court will render an award of attorney's fees under section 406(b) of the SSA in tandem with the EAJA award. The SSA award, of course, must be independently calculated according to the "prevailing market rates" in the community. Wells v. Bowen, supra, at 43. Here, the attorney seeks $90 per hour—see affidavit, supra, ¶ 14—, which, although greater than the statutory ceiling imposed under the EAJA, reflects an appropriate rate under the separate standards of the SSA. See McNeill v. Secretary of Health and Human Services ("McNeill II"), 713 F.Supp. 59, 61 (W.D.N.Y.1989), ("$90 per hour is not greater than the prevailing market rate * * *"). Such rate will be granted for 40 hours of work, thereby deriving an SSA award of $3,600. Because the SSA award is greater than the EAJA award, it belongs to the attorney, while the lesser EAJA award will be given to the plaintiff.

Accordingly, it is hereby ORDERED that the plaintiff's counsel...