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KAUFFMAN v. SCHWEIKER

March 8, 1983

Cleason KAUFFMAN, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Before us is the request filed by plaintiff's counsel for attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Our review of the briefs, the record, and applicable law persuades us that the application for fees should be granted.

 I. Background

 Plaintiff was the prevailing party in an action brought under Title II of the Social Security Act. Plaintiff's action was filed pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g), for judicial review of the Secretary of Health and Human Services's final decision denying disability benefits. On November 12, 1982, we approved the report of a United States Magistrate recommending that plaintiff's motion for summary judgment be granted.

 On December 13, 1982, plaintiff's counsel filed his application for attorney fees in the amount of One Thousand Dollars ($1000) based on the rate of Fifty Dollars ($50) per hour for twenty (20) hours of work. Shortly thereafter plaintiff's counsel filed supporting affidavits from two area attorneys who attested that the rate, as well as number of hours, were reasonable for this kind of matter.

 In an order dated January 10, 1983, we directed that a brief from plaintiff's attorney was unnecessary and that any opposition to the application was due within ten (10) days. When an opposing brief was filed, we asked that a brief in support of fees be prepared. Review of this matter has convinced us that our initial impression on the propriety of a fee award was proper.

 The attack filed by defendant is two-pronged. First, defendant contends that the award of such fees is inappropriate in the present action because plaintiff's counsel is managing attorney of a legal services office and that such offices typically provide free services for indigent clients. Second, defendant asserts that even if fee awards are proper for legal service organizations under some circumstances, they should be denied in the current matter because defendant's position in denying benefits was "substantially justified." We have considered and rejected each of these arguments in arriving at our decision to award attorney fees.

 II. Attorney Fee Awards to Legal Service Organizations

 Authority for attorney fee awards is found in the following EAJA provisions:

 
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) 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) (emphasis supplied). The definition of "fees and other expenses," 28 U.S.C. § 2412(d)(1)(C), (2)(A) specifically includes attorney fees not to exceed $75 per hour except when the court finds that a higher fee is justified.

 In the present case defendant has concentrated on the use of the word "incurred" in the statute to bolster his argument against a counsel fees award. Defendant contends that plaintiff did not incur fees since legal aid agencies render free services. In support of his argument, however, defendant has cited only one case, the unpublished opinion of the United States District Court for the District of Vermont in Kinne v. Schweiker, No. 80-81 (D.Vt., June 29, 1982) (hereinafter Kinne II). In that case, plaintiff was successfully represented by a law school's legal clinic, which provided free services and supplemented its limited budget through any fee awards that were permitted. In rejecting the fee application, the analysis of Judge Coffrin in Kinne II focused upon the meaning of the word "incurred" and concluded that an attorney fee award was inappropriate if a prevailing party would not be liable to compensate his counsel.

 What defendant apparently did not know when he filed his brief, however, was that Judge Coffrin had subsequently reconsidered and vacated his earlier decision. In Kinne v. Schweiker, No. 80-81 (D.Vt., December 29, 1982) (hereinafter Kinne III), a copy of which was submitted with plaintiff's counsel's brief, Judge Coffrin stated that he was "persuaded that this [former] analysis was incorrect in certain ...


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