$ 1,283.00, the amount in fact successfully recovered as a result of this action, and that the other claims were merely collateral. Although we cannot fully accept the statement that "all services related to the filing of the lawsuit and representation in the Court proceedings should be characterized as relating solely to the claim on which plaintiff did prevail," it now appears to us that despite the existence of plaintiff's "collateral" claims, all the time spent and services rendered by plaintiff's attorney, and for which an award of fees is claimed, can reasonably be said to have been on behalf of plaintiff's primary claim, on which she did prevail. Moreover, any services which may have been rendered in furtherance of those collateral, non-prevailing claims are nevertheless compensable as they "overlapped and also supported the prosecution of a successful claim." Planned Parenthood Ass'n of Southeastern Pennsylvania, 508 F. Supp. 567, 570 (E.D.Pa.1980).
Accordingly, we believe that an award of fees and costs can be made at this time.
Plaintiff's attorney lists the following legal services performed by him in April, 1981, for a total of 5.0 hours: "Review of file correspondence with Internal Revenue Service for purpose of preparing Complaint Requesting Refund; dictation of Complaint; transmittal of material to U. S. District Court for docketing of Complaint and service upon proper persons."
The Court believes that 2.25 hours would have been more than enough time in which to perform those services, and will reduce the amount of the award accordingly. No details are supplied as regards the nature of the file correspondence which was reviewed, or the difficulty of that task. Based on our knowledge of the facts of this matter, we determine that 1.75 hours would have been sufficient time for such review. The complaint filed by the plaintiff very briefly sets out the basis of her claim, and consists of 21/2 pages. In our opinion, once the review of the file correspondence had been completed, the complaint could have been prepared in 0.50 hours. As for the transmittal of material to the court for docketing, and service of the complaint, it is unclear whether plaintiff's attorney himself performed those tasks in person. If so, no award is appropriate as those actions could have been completed by mail or messenger. If not, no attorney legal services were used, and no award can be made.
The next services for which an award is requested are as follows: "May, 1981-Receipt and review of letter from Tax Division of the United States Department of Justice, payment of U. S. Marshal Service fees." Plaintiff requests 0.50 hours for these services.
We have not been apprised of the nature of the letter, but we feel certain that it could have been adequately reviewed in 0.20 hours. As with the docketing and service of the complaint, we are not sure if payment of the Marshal's fee was made in person by plaintiff's attorney, but at any rate, no award is appropriate.
The following services were performed by plaintiff's attorney in July, 1981: "Receipt and review of Answer to Complaint; pre-trial proceedings before Judge Weiner followed by meeting between Defendant's attorney, Plaintiff's attorney, and Internal Revenue Service Official at the direction of Judge Weiner for informal discovery of records of Internal Revenue Service; subsequent receipt and review of Pre-Trial Report and Order." Plaintiff claims 4.0 hours for these services.
For review of the Answer to the Complaint, a document of 11/2 pages, we think 0.10 hours is sufficient. A total of 2.5 hours will be allowed for pre-trial proceedings and the meeting with the IRS official. Review of this court's Pre-Trial Report could have been accomplished in 0.05 hours.
For September, 1981, a request is made for an award of 0.50 hours for a telephone conference with the defendant's attorney and the court. We shall allow 0.20 hours for that phone call.
1.5 hours of plaintiff's attorney's time was consumed in October, 1981 for "Preparation of Motion for Judgment and transmittal of same to Judge Weiner and Defendant's attorney." We believe that 0.75 hours would have provided ample time for completion of that motion. As previously noted in this memorandum, no award shall be made in connection with transmittal of the document to the court.
An award is requested as well for legal fees incurred by plaintiff's attorney in pursuing this matter in administrative proceedings before the IRS. Such an award is authorized by the newly amended 28 U.S.C. § 2412(d)(3). Since that statute is applicable to all cases pending on October 1, 1981, contrary to the Government's argument, there is no issue of retroactivity with regard to our award in this case. The statute provides that in an action for judicial review of an adversary adjudication, the court shall include in its award fees and expenses to the "same extent authorized" in 5 U.S.C. § 504(a), unless the position of the United States was substantially justified or special circumstances make an award unjust. 5 U.S.C. § 504(a) provides for the award of costs and fees to a prevailing party in an agency adversary adjudication, unless the position of the agency was substantially justified or special circumstances make an award unjust.
In our earlier Memorandum Opinion and Order we concluded that the position of the United States was not justified, and we did not find any circumstances which would make an award of fees and costs unjust. We reiterate that determination, and have concluded that it applies as well to the adversary adjudication of the IRS. Although plaintiff requests payment for 4.0 hours of services in that regard, we shall award plaintiff 3.0 hours for services at the administrative level.
We find that the hourly rate of $ 75.00 is reasonable; and we award attorney's fees for a total of 9.05 hours, at plaintiff's attorney's hourly rate of $ 75.00 for a total of $ 678.75. Having thus calculated the lodestar, we may increase or decrease that figure by considering the contingent nature of success in the matter and the quality of the attorney's work. Lindy I, supra. We see no compelling reason to make such an adjustment of the lodestar, especially when neither the plaintiff nor the defendant has requested that we do so.
Finally, we shall award plaintiff the costs of $ 60.00 filing fee, $ 10.24 Marshal's fee, and $ 12.10 telephone expenses, a total of $ 82.34. The total award is therefore $ 761.09.
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