ORDER ACCEPTING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
No objections having been filed to the Magistrate Judge's RecommendedDecision filed September 3, 2002 the Recommended Decision is accepted.Accordingly, it is ORDERED that Plaintiff is awarded a total of $5,469.50representing (i) 37.7 hours of attorney time for which a total of$5,462.50 was charged, and (ii) $7.00 in costs.
RECOMMENDED DECISION ON PLAINTIFF'S MOTIONS FOR ATTORNEY FEES
The plaintiff has applied for an award of attorney fees pursuant to theEqual Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, in thisaction in which, with respect to his Supplemental Security Income ("SSI")and Social Security Disability ("SSD") appeal, he obtained a remand forfurther proceedings before the Social Security Administration. EAJAApplication for Fees and Expenses ("Application") (Docket No. 15);[Supplemental] EAJA Application for Fees and Expenses ("SupplementalApplication") (Docket No. 21). The defendant opposes the plaintiff'sinitial and supplemental fee applications on the grounds that (i) thegovernment's position was substantially justified and (ii)alternatively, the hourly rate sought ($145.00) is too high and certaincomponents of the bill are unreasonable, not properly supported and/ornot compensable under the EAJA. See generally Opposition to Plaintiff'sApplication for Fees and Expenses Under the Equal Access to Justice Act("Opposition") (Docket No. 18); Opposition to Plaintiff's SupplementalApplication [for] Award of Fees and Expenses Under the Equal Access toJustice Act ("Supplemental Opposition") (Docket No. 22).
The EAJA provides, in relevant part:
[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 . . . 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). As the First Circuit, in construing thislanguage, has explained:
The burden is on the government to demonstrate that its position was "substantially justified." Although the language of the statute refers to a "prevailing party," the statute makes clear that courts are to examine both the prelitigation actions or inaction of the agency on which the litigation is based and the litigation position of the United States. . . .
The government need not show that its position was "justified to a high degree"; rather, it must show that its position was "justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person." The Supreme Court has said this is equivalent to the "reasonable basis both in law and fact" formulation we have used.
Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001) (citations omitted).
In contending that her position was substantially justified, thecommissioner focuses on the plaintiff's asserted fundamental failure toadduce sufficient evidence to prove disability. Opposition at 3-4.However, it is irrelevant for these purposes whether the plaintiffultimately succeeds or fails in his quest for SSI and SSD payments. Theissue actually litigated was whether the commissioner's decisionalprocess was sufficiently flawed that remand for further consideration waswarranted. See, e.g., Plaintiff's Itemized Statement of Specific Errors(Docket No. 6); Report and Recommended Decision ("Recommended Decision")(Docket No. 12); Order Accepting the Recommended Decision of theMagistrate Judge (Docket No. 13). I found that it was. See RecommendedDecision. The commissioner's brief is unenlightening on the questionwhether her position with respect to this issue was substantiallyjustified; thus, she fails to meet her burden of showing that it was.
I turn next to the defendant's argument that, in any event, theplaintiff has failed to justify a fee higher than the $125 EAJA statutorycap. Opposition at 4-8. The EAJA provides, in section2412(d)(2)(A)(ii), that "attorney fees shall not be awarded in excess of$125 per hour unless the court determines that an increase in the cost ofliving or a special factor . . . justifies a higher fee." Thissubsection of the statute was amended in 1996 to increase the indicateddollar limit from $75 to $125. Pub.L. 104-121, § 232(b)(1);28 U.S.C. § 2412, Historical and Statutory Notes. It also providesthat the amount of fees awarded "shall be based upon prevailing marketrates for the kind and quality of the services furnished." The plaintiffhas submitted satisfactory evidence that the prevailing market rates forservices like those provided in this case exceed $125 per hour.Affidavit of Leslie S. Silverstein ("Silverstein Aff.") (Docket No. 17)¶¶ 3-6. The plaintiff has also submitted consumer price indexinformation for the period since the $125 statutory maximum rate wasenacted indicating that the percentage increase since then translates toa fee of $144.38 per hour, which he rounds up to $145. Affidavit [ofFrancis Jackson] in Support of Application for Attorneys Fees (DocketNo. 16) ¶ 8 & Exh. B thereto. Most significantly, the attorney forthe plaintiff in this case was awarded fees in the hourly amount of $145in January of this year by Judge Hornby of this court in a socialsecurity case that, from all that appears in the record of both cases,was no more complex or challenging than the instant case. Endorsementdated January 15, 2002 on Motion for EAJA Fees and Expenses (Docket No.8), Johnson v. Barnhart, Docket No. 01-98-P-H. Accordingly, while nospecial factor in thecase justifies an award at an hourly rate in excessof the statutory cap, an increase in the cost of living does provide suchjustification. I conclude that an hourly rate of $145 is reasonable.1
I turn finally to the defendant's arguments against allowance ofcertain components of the fees and costs sought, which I addressseriatim:
1. That a charge of 1.5 hours of attorney time on September 10, 2001for preparation of a complaint, letter to the clerk, civil cover sheetand summons is excessive inasmuch as the complaint and letter to theclerk are "boilerplate" documents and preparation of the civil coversheet and summons is a clerical duty for which attorney time should notbe charged. Opposition at 4; see also Invoice at 1. Counsel for theplaintiff concedes that a charge for one hour of attorney time for theservices in question would be more reasonable. See Plaintiff's ReplyMemorandum Regarding EAJA Fees and Expenses ("Reply") (Docket No. 20) at10. I agree. Thus, $72.50 of the total $217.50 claimed for theseservices should be disallowed.
2. That it is unclear whether charges for January 29 and 31, 2002relate to this case. Opposition at 4; see also Invoice at 2. I agree.The charges primarily concern preparation of letters to two highschools, and the plaintiff offers no explanation for them in his Reply.Accordingly, I recommend that the $43.50 billed for these services bedisallowed.
3. That time spent by a substitute attorney who handled the hearingbecause of the plaintiff's counsel's unavailability should bedisallowed. Opposition at 4-5. The plaintiff's request includes 6.3hours for the substitute attorney's time. Invoice at 3. Of this time,one hour fairly can be attributed to the substitute's attendance at oralargument2, and 0.3 hours was spent in reviewing the court'sdecision. Id. Thus, the balance of five hours reflects the substituteattorney's preparation for oral argument. While the plaintiff's attorneywould have had to spend some time in preparing for oral argument in thiscase, much of the time devoted to preparation by the second attorney wasdue solely to the fact that he was new to the case and needed tofamiliarize himself with facts and arguments already known to theplaintiff's attorney. I conclude that a reasonable time for preparationfor oral argument by the plaintiff's attorney of record would have been1.5 hours, and that 3.5 hours of preparation time, for which a total of$507.50 is sought, therefore is not compensable.3 This conclusion inno wayreflects on the performance of substitute counsel at oralargument, which in fact was commendable.
4. That the invoice contains a charge for time spent on August 16,2002, then a "future" date. Opposition at 5; Invoice at 3. In hisReply, the plaintiff offers no explanation for this charge, which in anyevent appears duplicative of charges assessed for August 17, 2001 andAugust 29, 2001. Compare Invoice at 1 with id. at 3. Accordingly, Irecommend that the charge of $29.00 assessed for time spent on August16, 2002 be disallowed.
5. That United Parcel Service ("UPS") charges of $21.63 are notallowable inasmuch as the EAJA does not permit recovery of postagecosts. Opposition at 8-9. I agree. This court has held that postagemay not be taxed as a cost in an EAJA case. See, e.g., Sierra Club v.Marsh, 639 F. Supp. 1216, 1225-26 (D.Me. 1986), aff'd, 820 F.2d 513 (1stCir. 1987).4 Moreover, even if such costs were allowable as a generalrule, I would recommend that the court exercise its discretion to denythose charges in this case. Jackson blames the charges (incurred forovernight deliveries to Bangor) on a court rule requiring filing in bothBangor and Portland in cases such as this. Reply at 11-12. However,Jackson could have avoided the need for the charges in question by notwaiting until the 11th hour to file the documents. I accordinglyrecommend that the claimed UPS charges of $21.63 be disallowed.
6. That a total of $884.50 sought for 6.1 hours expended in preparinga reply brief in the instant EAJA litigation "is excessive and should besubstantially reduced" and that $17.09 in postage expenses requested inconnection with this litigation also should be disallowed.Supplemental Opposition; see also Supplemental Application. In thiscircuit, attorney fees incurred in litigating EAJA fee applications arerecoverable. See, e.g., McDonald v. Secretary of Health & Human Servs.,884 F.2d 1468, 1480 (1st Cir. 1989) ("[W]here the government's underlyingposition is not substantially justified, plaintiff is entitled under theEAJA to recover all attorney's fees and expenses reasonably incurred inconnection with the vindication of his rights, including those related tolitigation over fees, and any appeal.") (citation and internal quotationmarks omitted). The commissioner's argument against allowance of thefull fee is conclusory; she neither explains why in her view 6.1 hours isexcessive nor suggests what a reasonable amount of time would have been.However, for the reasons explained above, I recommend that postageexpenses of $17.09 be disallowed.
7. That "any attorney time expended in this matter should be weighedunder the concepts of reasonableness and an economy of effort."Opposition at 8. Apart from the specific charges discussed above, thedefendant identifies no other time as wasteful or otherwise excessive.For the foregoing reasons, I recommend that the plaintiff be awarded atotal of $5,469.50, representing (i) 37.7 hours of attorney time forwhich a total of $5,462.50 was charged, and (ii) $7.00 in costs.5
1. The defendant asserts that the plaintiff seeks reimbursement at"varying hourly rates." Opposition at 4. According to my calculations,the fee charged for all entries except one was $145. See generallyInvoice (attached to Application). For 0.4 hours of services rendered onMarch 12, 2002 the plaintiff's counsel charged $54, equivalent to a rateof $135 per hour. Id. at 3. No rate charged exceeded the rate cap thatI have found to be reasonable, $145 per hour.
2. The invoice indicates that the substitute attorney spent 1.9 hourson the day of oral argument attending to "argument, preparation, [and]research." Invoice at 3.
3. The plaintiff's counsel, Francis Jackson, suggests that he shouldbe permitted to recover full charges for substitute counsel's timeinasmuch as the court refused to permit a continuance despite his timelynotice that the hearing date conflicted with his longstanding vacationplans. Reply at 10. Jackson's notice was not timely. Not only did hewait approximately three weeks after issuance of the hearing schedule toapprise the court of the conflict, see id., but he also informed me thathe and his family take the same week of vacation every year. Thus, hecould have averted the problem altogether by informing the clerk's officewell in advance of the publication of the hearing list of his standingvacation plans and seeking general protection, which would have resultedin the scheduling of oral argument on all cases on the list on adifferent date.
4. There has been no post-Marsh amendment to the language of the EAJAor 28 U.S.C. § 1920, which is incorporated by reference in the EAJA,that would call into question the court's ruling concerning recovery ofpostage charges. Compare Marsh, 639 F. Supp. at 1225-26 with28 U.S.C. § 1920, 2412.
5. I note that this is the third EAJA fee dispute involving thecommissioner and Jackson filed in this court since January. The partiesare cautioned to refrain from litigating issues already addressed anddecided by the court, a practice that imposes an undue burden on thecourt's scarce resources.