In the Matter of Luz Solla, Respondent,v.Elizabeth Berlin, Appellant, et al., Respondents.BriefN.Y.January 15, 2015COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - -x In the Matter of the Application of LUZ SOLLA, : Petitioner-Respondent, : For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, : -against- : ELIZABETH BERLIN, as Executive Deputy : Commissioner of the New York State Office of Temporary and Disability Assistance, : NY County Index No: 401178/2011 Respondent-Appellant, : ROBERT DOAR, as Commissioner of the New York : City Human Resources Administration, and JACQUELINE DUDLEY, as Deputy Commissioner of : the New York City HIV/AIDS Services Administration, : Respondents. - - - - - - - - - - - - - - - - - - - - - - - -x BRIEF ON BEHALF OF PETER VOLLMER AMICUS CURIAE IN SUPPORT OF PETITIONER-RESPONDENT Law Office of Peter Vollmer, P.C. By: Peter Vollmer, Esq. 19 Hawthorne Road Sea Cliff, New York 11579 (516) 277-1156 November 18, 2014 Table Of Contents Page Statement of Interest of Amicus Curiae ...................... 1 Question Presented .......................................... 3 Statement of the Case ....................................... 4 Summary of Argument ......................................... 6 Point I ..................................................... 8 THE FIRST DEPARTMENT CORRECTLY DETERMINED THAT A PARTY DOES NOT REQUIRE A FAVORABLE JUDGMENT, ORDER OR CONSENT DECREE TO PREVAIL UNDER THE STATE EAJA. A. THE CATALYST TEST IS ESSENTIAL TO EFFECTUATE THE LEGISLATIVE INTENT OF THE STATE EAJA........... 8 B. THE CATALYST TEST WILL NOT STRAIN THE PUBLIC FISC............................................... 16 C. ALTERNATIVE PROCEDURAL MECHANISMS WILL NOT DETER A STATE AGENCY FROM FAVORABLY MOOTING MERITORIOUS ACTIONS TO EVADE FEE LIABILITY......... 20 Point II .................................................... 27 THE STATE EAJA IS THE LAST LINE OF JUDICIAL ACCESS FOR INDIGENT NEW YORKERS IN NEED OF CIVIL LEGAL REPRESENTATION. Conclusion .................................................. 33 Table of Authorities Cases Antonsen v Ward, 943 F.2d 198 (1991) ........................ 24 Associated Builders & Contractors v Orleans Parish School Board, 919 F.2d 374 (5th Cir. 1990)...................... 9 Boyland v Wing, 487 F.Supp.2d 161 (E.D.N.Y. 2007) ........... 12 Buckhannon Board and Home Care, Inc. v West Virginia Dept of Health and Human Resources, 532 U.S. 598 (2001) .............................. 6-7, 9-10, 14, 20, 26 Carey v Piphus, 435 U.S. 247 (1978) ...................... 22-23 Casillas v Perales, 154 A.D.2d 420 (2d Dept 1989) ........... 25 Davidson v Capuano, 792 F.2d 275 (2d Cir. 1986) .......... 23-24 Friedman v Berger, 547 F.2d 724 (2d Cir 1976), cert denied, 430 U.S. 984 (1977) .................................... 31 Grano v Barry, 783 F.2d 846 (7th Cir. 1982) .................. 9 Henry v Gross, 803 F.2d 757 (2d Cir. 1986) .................. 23 Loftin v New York City Department of Social Services, 267 A.D.2d 78 (1st Dept. 1999) ............................. 26 Lynch v Philbrook, 550 F.2d 793 (2d Cir. 1977) .............. 31 Matter of Auguste v Hammons, 285 A.D.2d 417 (1st Dept. 2001) ............................................... 3, 14 Matter of Graves v Doar, 2010 NY Slip Op 31051U (Sup.Ct. Nassau Co. April 16, 2010) affd 87 A.D.3d 744 (2d Dept. 2011) ............................................ 12 Matter of Gross v Perales, 72 N.Y.2d 231 (1988) .......... 24-26 Matter of Gunn v Blum, 48 N.Y.2d 58 (1979) .................. 24 Matter of New York State Clinical Laboratory Association, Inc. v Kaladjian, 85 N.Y.2d 346 (1995) .............. 7, 21 Matter of Schvartszayd v Dowling, 239 A.D.2d 104 (1st Dept. 1997) ............................................. 6 Matter of Solla v Berlin, 106 A.D.3d 80 (1st Dept. 2013) ......................... 1, 3, 5-6, 8, 13, 16-17, 20 Matter of Thomasel v Perales, 78 N.Y.2d 561 (1991) ... 2, 12, 32 Matter of Wittlinger v Wing, 289 A.D.2d 171, affd 99 N.Y.2d 425 (2003) ................................ 3, 15-16 Memphis Community Sch.Dist. v Stachura, 477 U.S. 299 (1986).. 22 Monell v Department of Social Servs, 436 U.S. 658 (1978)..... 22 Mont v Heintz, 849 F.2d 704 (2d Cir. 1988) .................. 31 Parker v Blauvelt Volunteer Fire Company. Inc., 93 N.Y.2d. 343 (1999) .......................................... 23-24 Pierce v Underwood, 487 U.S. 552 (1988) ..................... 7 Schweiker v Gray Panthers, 453 U.S. 34 (1981) ............... 31 Schaffer v Evans, 57 N.Y.2d 992 (1982)....................... 25 Sherman v Griepentrog, 775 F.Supp. 1383 (D.Nev. 1991) ....... 31 Shulman v Grinker, 184 A.D.2d 306 (1st Dept 1992) ........... 26 Statutes and Regulations 28 U.S.C. § 2412(d)........................................... 2 i Statutes and Regulations 42 U.S.C. § 602(a)(3) ....................................... 32 § 1983.............................................. 2 § 1988.............................................. 2 C.P.L.R. § 7806 ............................................. 25 § 8601 ........................................ 7-8, 13 New York Social Services Law § 20 ........................... 33 § 22 ........................ 32-33 § 29 ........................... 32 § 34 ........................ 32-33 22 N.Y.C.R.R. § 1200.0 Rule 1.1 ............................. 31 18 N.Y.C.R.R. § 358-3.1 ..................................... 32 § 358-4.4 ..................................... 32 § 358-6.1 ..................................... 32 § 358-6.4 ..................................... 32 Rules of the Chief Administrator § 130-1.1 ............... 21-22 ii STATEMENT OF INTEREST OF AMICUS CURIAE I submit this amicus brief in support of the appeal of Petitioner-Respondent Luz Solla ("Ms. Solla"), who seeks an award of reasonable attorneys fees pursuant to the New York State Equal Access to Justice Act ("State EAJA") to compensate her counsel for legal services which compelled compliance with a fair hearing decision requiring the restoration of certain public assistance benefits. Reversing the lower courts denial of such fees, the Appellate Division, First Department, properly construed the express text of the State EAJA, drew appropriate guidance from its legislative history, and correctly reinstated a "prevailing party" standard whose absence had eviscerated the ability of the statute to fulfill its intended purposes.1 I respectfully offer this brief for the Courts consideration because I am well poised to shed light on the street-level public policy implications for the poor if this Court does not affirm the First Departments well-reasoned opinion. I was admitted to practice law in November, 1985 and am a member in good standing of the Bars of the Courts of New York State, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit and the United States Supreme Court. From April 1986 to April 1987, I was employed as a Staff Attorney in the Public Entitlements Unit of Nassau/Suffolk Law 1 106 A.D.3d 80 (1st Dept. 2013). 1 Services Committee, Inc., a not-for-profit civil legal services program funded in part by the federal Legal Services Corporation. From April 1987 to September 1993, I served as Senior Staff Attorney of that unit with oversight responsibility for the provision of civil legal assistance to thousands of indigent recipients of public assistance, food stamps and Medicaid. In September 1993, I launched a solo practice devoted exclusively to the legal representation of indigent recipients of public entitlements, and relied on court-awarded counsel fees pursuant to the Civil Rights Attorneys Fees Act of 1976,2 the federal Equal Access to Justice Act ("federal EAJA")3 or the State EAJA as the only form of payment for my legal services.4 From May 1995 to April 2008, I formed a partnership with another attorney who provided legal counsel in elder law and estate planning while I continued to focus on entitlement litigation. In April 2008, I resumed a solo practice with exclusive focus on poverty law. During my 29 year legal career, I have represented indigent appellants at 291 administrative fair hearings and commenced 190 lawsuits in state and federal court (including twenty class actions) on behalf of clients who suffered the reduction or 2 42 U.S.C. § 1988. 3 28 U.S.C. § 2412(d). 4 The privatization of my poverty law practice was facilitated when I prevailed on petitioners behalf in Matter of Thomasel v Perales, 78 N.Y.2d 561 (1991) [establishing that unconstitutional deprivation of public entitlements is cognizable under 42 U.S.C. § 1983 and compensable under 42 U.S.C. § 1988]. 2 termination of their public entitlements without due process of law.5 To date, I have argued thirty-one (31) cases before the Appellate Division, First and Second Departments, 3 cases before this Court, and am attorney of record in Wittlinger v Wing6 and Auguste v Hammons7, the two cases cited by the nisi prius court to deny the State EAJA fee award at issue herein. I seek to appear amicus curiae because the outcome of this appeal will directly impact my ability to provide effective legal assistance to the indigent. I respectfully submit that my lengthy experience in poverty-oriented public and private practice places me in a unique position to be of special assistance to the Court in deciding whether the lower courts denial of a State EAJA fee award to Ms. Sollas counsel was correct. QUESTION PRESENTED Did Ms. Solla "prevail" for State EAJA fee purposes when the governmental respondents favorably mooted her claims prior to final judgment? The First Department held that she had prevailed.8 5 Of the 182 cases decided to date, my clients prevailed in whole or in substantial part in 146 cases. For reasons set forth more fully, infra, I have not always been compensated when my clients prevailed in their litigation. An enumeration of some of my entitlement-related class actions is set forth in footnote #12 of the accompanying affirmation. 6 289 A.D.2d 171 (1st Dept. 2001) affd 99 N.Y.2d 425 (2003). 7 285 A.D.2d 417 (1st Dept. 2001). 8 106 A.D.3d 80 (1st Dept. 2013). 3 STATEMENT OF THE CASE The Brief for Petitioner-Respondent contains a detailed statement of the factual and procedural history that will not be replicated here. To summarize, Ms. Solla secured a favorable Decision After Fair Hearing dated November 29, 2010 from the Office of Temporary and Disability Assistance of the New York State Department of Family Assistance ("State Agency") which directed the New York City Human Resources Administration ("City Agency") to restore certain subsistence benefits retroactively to September, 2010 [R37-R40]9. When the City Agency did not comply with the fair hearing directive, Ms. Solla, by her counsel, lodged a complaint with the State Agency on March 28, 2011 [R41]. Two days later, the State Agency informed Ms. Sollas counsel that a report from the City Agency confirmed that compliance had been obtained and concluded based upon the report alone that "the matter is satisfactorily resolved "[R42]. The State Agency did not check its own computer system to verify the accuracy of this report until June 1, 2011 -- some 65 days after Ms. Solla lodged her complaint, 63 days after it was closed out by the State Agency, and 26 days after the litigation was commenced [R72-R75]. On May 6, 2011, Ms. Solla filed an Article 78 proceeding in the nature of mandamus to compel the State Agency to secure municipal compliance with her fair hearing decision. Two weeks 9 "R- " refers to applicable pages from the Record on Appeal. 4 later, the special proceeding was favorably mooted when the City Agency issued the contested benefits in conformity with the fair hearing directives [R16-R42]. Thereafter, Supreme Court, New York County, dismissed the petition as moot including Ms. Sollas State EAJA fee claims [R13- R14]. In so holding, the Honorable Alexander W. Hunter, Jr., while acknowledging that "it apparently took the filing of this Article 78 motion to get respondents attention after months of arbitrary delay" and "appears undoubtedly to have been the catalyst for [their] compliance," cited Auguste and Wittlinger as the legal predicates for denial of her fee claim for lack of an enforceable judgment [R14]. The First Department, upon careful review of the text and legislative history of the State EAJA, determined that Ms. Solla prevailed for fee purposes because the filing of the lawsuit was the catalyst for the State Agencys corrective action. Finding that "it would be inconsistent with the laudatory goals of the State EAJA to interpret the legislation as depriving plaintiffs of attorneys fees simply because the State decided to concede its position," the Honorable Angela M. Mazzarelli, writing for a 4-1 majority, concluded that the catalyst test applies to the State EAJA and reversed Justice Hunters denial of such fees to Ms. Sollas counsel.10 10 106 A.D.3d at 93. 5 SUMMARY OF ARGUMENT The State EAJA was enacted to enable litigants of modest means to attract counsel to challenge the unjustified actions of New York State agencies. The Solla majority correctly declined to follow the First Departments prior holdings in Auguste and Wittlinger because those decisions erroneously departed from well established precedent, overextended a decision of the United States Supreme Court,11 and undermined the ability of indigent litigants to obtain legal counsel in contravention of the declared intent and purpose of the State EAJA. Prior to Auguste and Wittlinger, such petitioners qualified for a State EAJA fee award when the filing and prosecution of a suit, rather than any formal judicial action, served as the catalyst for a state agency to provide the relief demanded by the suit.12 The catalyst test thus became an important basis for a State EAJA fee award whenever a state agency, upon gauging its litigation prospects, realized that the best course of action was to abandon the conduct that prompted the suit before the matter went to judgment. In the wake of Auguste and Wittlinger, the judicial abandonment of the "catalyst test" in favor of a bright-line 11 106 A.D.3d at 81-82, citing Buckhannon Board and Home Care, Inc. v West Virginia Department Health and Human Resources, 532 U.S. 598 (2001). 12 See, e.g., Matter of Schvartszayd v Dowling, 239 A.D.2d 104 (1st Dept. 1997). 6 "judgment, order or consent decree" rule has enabled state agencies who are sued for injunctive relief to deprive plaintiffs counsel of compensation by favorably mooting the injunctive claims, and thereby "slink away on the eve of judgment"13 before the case reaches a formal judicial resolution. If the merits of an indigents legal claims at filing no longer determine the likelihood of a fee award, then the private bar and eligible legal services attorneys will have little incentive to litigate such cases because compensation will depend not on the underlying merit of the case or its favorable outcome, but on the strategizing of government counsel. Disavowal of the catalyst test under the State EAJA will strike yet another blow in the struggle for access to justice by further destabilizing a poverty law bar already reeling from drastic funding cutbacks to civil legal services programs and the Buckhannon-induced constriction of fee eligibility under most federal fee-shifting statutes. Finally, the catalyst test invites no assault on the state treasury. If a court determines that the state agencys contested action or inaction had "a reasonable basis both in law and fact,"14 then the fee application fails because "the position of the state was substantially justified."15 A fee award will 13 Buckhannon, 532 U.S. at 618 (Scalia,J., concurring). 14 Matter of New York State Clinical Laboratory Association, Inc. v Kaladjian, 85 N.Y.2d 346, 356 (1995), citing Pierce v Underwood, 487 U.S. 552, 565 (1988). 15 CPLR § 8601(a). 7 similarly fail if a "special circumstance" in a given case renders such an award unjust.16 Because the amount of the fee award is also left to the sound discretion of the court, the statute has multiple levels of safeguards to ensure that a fee of reasonable amount will only be awarded under limited circumstances to a narrow class of not-for-profit organizations, small businesses and low-income New Yorkers. Since the State EAJA contains adequate protections against any raid on the state treasury and the catalyst test ensures that the laudatory goals of the State EAJA are actualized, this Court should affirm the First Departments reinstatement of the catalyst test as the appropriate benchmark to determine prevailing party status under the State EAJA. POINT I THE FIRST DEPARTMENT CORRECTLY DETERMINED THAT A PARTY DOES NOT REQUIRE A FAVORABLE JUDGMENT, ORDER OR CONSENT DECREE TO PREVAIL UNDER THE STATE EAJA. 1. THE CATALYST TEST IS ESSENTIAL TO EFFECTUATE THE LEGISLATIVE INTENT OF THE STATE EAJA. In her majority opinion, Justice Mazzarelli aptly noted that the "spirit and purpose" of the State EAJA is "to level the playing field for those without the necessary resources to challenge state action through litigation."17 Quoting the bills sponsoring memorandum, Justice Mazzarelli observed that the legislation was intended "to encourage individuals, small 16 CPLR § 8601(a) 17 106 A.D.3d at 85. 8 businesses and not-for-profit corporations to challenge State action when it lacks substantial justification by allowing them to recover fees and litigation expenses."18 To qualify for a fee award, a party must "prevail" in the litigation.19 Prior to Buckhannon, courts construing the federal fee-shifting statutes and the State EAJA generally agreed that an applicant prevailed for fee purposes if the ends of the litigation were accomplished as a result of the litigation even if the legal action stopped short of final judgment due to favorable mooting. All but one federal Court of Appeals concluded that plaintiffs could obtain a fee award if their suit acted as the "catalyst" for the sought-after relief, even if they did not obtain a judgment, consent decree or other formal judicial imprimatur.20 In 2001, the Buckhannon Court, in a 5-4 decision split down ideological lines, charted a new and unwelcome path in determining when a plaintiff "prevails" for fee purposes under the federal fee-shifting statutes. Chief Justice Rehnquist, joined by Justices OConnor, Scalia, Kennedy and Thomas, determined that a plaintiff who actually obtains the relief sought by the litigation does not "prevail" for fee purposes unless the court also issues a court 18 Id. 19 CPLR § 8601(a). 20 Buckhannon, 532 U.S. at 625-626 (Ginsburg, J., dissenting, with whom Justices Stevens, Souter and Breyer join), citing Grano v Barry, 251 U.S.App. 289, 783 F.2d 846 (7th Cir. 1982) and Associated Builders & Contractors v Orleans Parish School Board, 919 F.2d 374, 378 (5th Cir. 1990). 9 order, judgment or consent decree formalizing the victory.21 Although the "court-order-to-prevail" standard sounds somewhat benign, its real world application has spelled disaster for firms such as my own that represent indigent clients seeking redress from governmental actions or inactions which lack substantial justification. Prior to Buckhannon, my practice focused primarily on the representation of poor persons like Ms. Solla at administrative fair hearings before the State Agency and the commencement of individual Article 78 proceedings to reverse unfavorable fair hearing decisions or, as here, to compel local compliance with favorable fair hearing decisions. In most cases, my clients prevailed when the State Agency finally goaded the local social services district to provide the contested benefit in the midst of litigation and the matter was favorably mooted. The fees generated by such cases sustained my practice and tempered the occasional protestations of my wife who could not quite understand why I had not pursued more traditional (and reliably compensable) forms of law practice. During this time, a court, in the exercise of its own discretion, decided whether a fee award was warranted based upon the catalytic effect of the lawsuit and the extent of relief actually obtained. Under the Buckhannon "court-order-to-prevail" rule, however, the discretion to authorize a fee award was stripped from the court and shifted to the very governmental 21 532 U.S. at 604-605. 10 defendants whose misbehavior created the fee exposure. As a result, governmental defendants who historically settled cases to limit fee liability had a strategic incentive to moot the indigent litigants claims, seek dismissal on that ground and evade fee liability. Unfortunately, this litigation strategy proved quite successful for my governmental adversaries in the aftermath of the Auguste and Wittlinger decisions. After 2001, the favorable mooting of my clients substantive claims (previously sufficient to support a fee award under the catalyst test) defeated a fee award because my client failed to obtain a court order formalizing the victory. I confronted this litigation strategy with such frequency that I regrettably abandoned Article 78 proceedings of the sort at issue herein. With the demise of the catalyst test, there was no longer any certainty that success for my client would result in an attorneys fee to my practice. To the contrary, premature success prior to judgment then assured that no fee would be paid. The pattern was always the same. To avoid fee liability, my governmental opponent, having tenaciously litigated a case until the last minute, simply capitulated, compelled the provision of the contested benefit and moved to dismiss the proceeding on mootness grounds. Overburdened judges were all too prone to dispose of such cases (and petitioners fee claims) on that basis. As a result, I generally declined the strongest cases because they were most likely to be mooted immediately after filing. I 11 abandoned individual Article 78 proceedings seeking to enforce the terms of favorable fair hearing decisions, to reverse unfavorable fair hearing decisions or to compel the local continuation of entitlement benefits pending the outcome of administrative appeal.22 What had been the foundation of my practice was relinquished as a direct result of the First Departments pre- Solla disavowal of the catalyst test. Although my ability to bring individual Article 78 proceedings became unsustainable with the demise of the catalyst test, my firm survived over the last 13 years by placing high- stakes bets on the eventual compensability of entitlement-related class actions -- a strategy that sometimes merits a fee award on those rare occasions when state courts grant class certification. Because such cases require a much larger investment of time and effort over the span of several years, my entire practice became susceptible to one ill-timed loss -- a vulnerability that did not exist when my practice was more broadly based upon the prosecution of both individual Article 78 proceedings and class actions.23 22 See Thomasel, supra, for a recitation of the fact pattern precipitating litigation in the latter "aid-continuing" category. 23 In one particularly galling instance, I litigated the City Agencys failure to properly issue federally-funded Emergency Home Energy Assistance Program benefits to a class of indigent New York City households for several years only to have my fee claims dismissed when the City Agency, accurately gauging wind direction, finally amended its procedures on the eve of trial in direct response to the lawsuit. Boyland v Wing, 487 F.Supp.2d 161 (E.D.N.Y. 2007). On the other side of the ledger, I was awarded a State EAJA fee in Matter of Graves v Doar, 2010 NY Slip Op 31051U (Sup. Ct. Nassau Co. April 16, 2010), affd 87 A.D.3d 744 (2d Dept. 2011), a 12 If the State EAJA is to achieve its intended purposes, an attorney should be able to assess the compensability of a given case by evaluating whether the behavior of the state agency was reasonable in law and fact and confirming that the prospective client meets the financial thresholds set forth in the statute. If the attorney must also accurately predict whether opposing counsel will settle the case before it reaches a formal judicial resolution, such a requiremet will gut the financial incentive that the statute was enacted to foster. The State EAJA sets forth five statutory prerequisites for a fee award.24 Clairvoyance is not, and should not be, among them. As counsel of record in Auguste and Wittlinger, I also can attest to the accuracy of the Solla majoritys observation that "Auguste was briefed before Buckhannon was decided" and that the earlier First Department panel "relied solely on Auguste in deciding Wittlinger."25 Given the contemporaneous emergence of Buckhannon in the midst of those appeals, Justice Mazzarelli correctly observed that the First Department was not poised at that time to "perform the searching analysis of the State EAJA Food Stamp class action that the State Agency unsuccessfully fought to judgment over a six-year period. Had the State Agency capitulated prior to judgment, imposition of the Buckhannon- Wittlinger-Auguste "judgment-to-prevail" rule would have defeated petitioners State EAJA fee claim and likely spelled the end of my poverty law practice. 24 C.P.L.R. § 8601. 25 106 A.D.3d at 82, 91. 13 that we engage in now."26 With Respect to Auguste v Hammons In Auguste, the First Department reversed a State EAJA fee award that had been awarded to my firm by the lower court under the catalyst test when the State Agency compelled the City Agency to reinstate Mr. Augustes Medicaid benefits. As stated by the Court: While petitioner asserts that attorneys fees were authorized because the filing of the petition was the "catalyst" for the remedial action taken by [the City Agency], namely a restoration of his [Medicaid] benefits, this theory of recovery has recently been rejected by the United States Supreme Court (Buckhannon Bd. & Care Home, Inc. v W. Virginia Dept. of Health and Human Services, US , 121 S.Ct. 1835 [May 29, 2001]...Since Supreme Court did not issue an enforceable judgment on the merits of petitioners constitutional claim, there was no material alteration of the legal relationship of the parties sufficient to support an award of attorneys fees (Buckhannon, supra).27 The State Agencys appellate brief in Auguste was filed in November 2000 and my brief in support of the fee award and the State Agencys reply brief in further support of reversal were sequentially filed in January 2001. Buckhannon was decided four months later. Because the Auguste appeal was fully submitted before Buckhannon was decided, the First Department did not have the benefit of any briefing to defend the continued viability of the catalyst test under the State EAJA notwithstanding the Buckhannon decision. 26 Id. at 91. 27 285 A.D.2d at 418. 14 With Respect to Wittlinger v Wing In 2000, the State Agency determined at a fair hearing that the City Agency had improperly terminated several of Mr. Wittlingers entitlement benefits and directed the City Agency to restore them. When the State Agency failed to compel municipal compliance with those directives, an Article 78 proceeding was commenced and the City Agency promptly restored the benefits. Although the lower court conceded that the governmental respondents scrambled to issue the retroactive benefits in the wake of the lawsuit, the petition was dismissed as moot and Mr. Wittlingers federal and state fee claims were denied without explanation. On appeal, I argued that the lower court failed to apply the catalyst test when assessing Mr. Wittlingers fee eligibility. My brief to the First Department was filed one month before the Buckhannon decision was rendered, and thus made no mention of it. The State Agency filed its answering brief shortly after Buckhannon was decided and, citing it passim, invited the First Department to extend the Buckhannon Courts disavowal of the catalyst test to the State EAJA. The First Department accepted the invitation28 and this Court, despite broadly based amicus support urging retention of the catalyst test,29 did not address the issue. Adopting an 28 289 A.D.2d 171 (1st Dept. 2001). 29 Amici included Assemblywoman Helene E. Weinstein, as Chair of the New York State Assemblys Standing Committee on the Judiciary, the New York State Bar Association, the Association of 15 alternative fee analysis, this Court found on the facts of that case that the State Agencys enforcement actions were substantially justified, thereby rendering the case non- compensable under the State EAJA.30 Since the United States Supreme Court cannot dictate the parameters of a state statute, the Auguste decision lacked any briefing on the impact of the Buckhannon decision, and this Court declined to decide the post-Buckhannon viability of the catalyst test when it decided Wittlinger on alternative grounds, it is respectfully submitted that this Court should take this opportunity to affirm the First Departments restoration of the catalyst test as the proper measure of prevailing party status under the State EAJA. B. THE CATALYST TEST WILL NOT STRAIN THE PUBLIC FISC. In his dissent, Justice John W. Sweeny correctly observed that "the State EAJA brings into play two broad public policies: to facilitate access to the judicial system for the poor and to maintain adequate restraints on the amount of fees awarded."31 the Bar of the City of New York, the New York County Lawyers Association, the Greater Upstate Law Project, the New York Legal Assistance Group, the Brennan Center for Justice at New York University Law School, New York Lawyers for the Public Interest and the Welfare Law Center, Alexander D. Forger, former President of the Legal Services Corporation, the New York State Bar Association and The Legal Aid Society; Professor Martin A. Schwartz of Touro Colleges Jacob D. Fuchsberg Law Center and preeminent author of three treatises on litigation under 42 U.S.C. § 1983, and Carole A. Burns, the founding partner of a law firm that suspended the expansion of its "poverty law" practice as a result of Wittlinger. 30 99 N.Y.2d 425 (2003). 31 106 A.D.3d at 96. 16 However, he feared that the Solla majoritys adoption of the catalyst test "will inevitably lead to...a raid of the States coffers."32 This concern is readily dispelled by review of the annual reports of the New York State Comptroller which tracked EAJA fee awards during the years that the catalyst test was in place. Between 1990 and 2001, these reports confirm that State EAJA fee awards totalled $521,908 -- an average of just $43,492 per year.33 This modest payout lends little support for Justice Sweenys speculation that reinstatement of the catalyst test will somehow invite potential abuse or overwhelm the public fisc. If restoration of the catalyst test increases the pool of attorneys willing to represent EAJA-eligible clients and fee awards increase in future years, such an outcome will assist the State Agency in securing local compliance with its fair hearing directives. In its earlier forms, the State EAJA was repeatedly vetoed because there was no showing "...that [state] agencies...have wielded their regulatory authority in an irresponsible fashion."34 One year before enactment, however, the quantum of proof regarding 32 Id. at 95. 33 See Office of the State Comptroller Summary of Awards Made Pursuant to Article 86 for FY 1990 - FY2001 at Exhibit A. 34 See Governors Mem. on Bill Veto #71, Veto Jacket, reprinted in 1983 NYLegisAnn at 460-461. See, also, Governors Mem. on Bill Veto #273, Veto Jacket, reprinted in 1982 NYLegisAnn at 341-342; Governors Mem. on Bill Veto #26, Veto Jacket, reprinted in 1984 NYLegisAnn at 366 and Governors Mem. on Bill Veto #85, Veto Jacket, reprinted in 1986 NYLegisAnn at 376. 17 the State Agencys unjustified failure to enforce its own fair hearing decisions was widely documented by the State Bar Task Force Report on Administrative Adjudication, and might reasonably have turned the tide in favor of enactment of this legislation. In the wake of this report, Cesar A. Perales, the State Agencys Commissioner at the time, urged then-Governor Mario Cuomo to veto the State EAJA for a fifth time because the statute, once enacted, would expose the State Agency to fee liability whenever it failed to compel local compliance with state directives.35 The payout history of the State EAJA confirms former Commissioner Perales worst fears. Since its enactment, the State Agency, unwilling to reign in local intransigence, far outpaced 35 In his opposing memorandum to the Governor, Commissioner Perales urged disapproval of the bill because, inter alia, ...an estimated 450 legal actions are brought against the [State Agency] each year. In about one half of these cases, the plaintiff or petitioner prevails within the meaning of the bill (either through settlement substantially favoring the plaintiff or by final judgment)... ...the bill fails to provide a mechanism that would allocate the cost of fees awarded when the [State Agency] is a co-defendant with a local government. Often the [State Agency] is a party to an action due to its supervisory responsibility over the [local] social services districts. In many instances,...the local district may have failed to comply with the [State Agencys] instructions. The bill does not permit an award against a local government. As a result, the tendency would be to grant an award against the [State Agency] for failing in its oversight responsibilities. See Memorandum from Cesar A. Perales to Evan Davis, Counsel to the Governor, Re Assembly Bill 3313-B dated July 19, 1989, pages 2-3, appended hereto at Exhibit B. 18 any other sister state agency in the payout of State EAJA fee awards to indigent New Yorkers. Between 1990 and 2001, the New York State Comptroller reported that seventy-three percent (73%) of all successful State EAJA cases were paid by the State Agency to indigent New Yorkers who challenged local determinations pertaining to their most basic public entitlements.36 When additional cases identified by computer search are included with those listed by the State Comptroller, the State Agencys liability rises to seventy-five percent (75%) of all State EAJA fee awards. Unable to prevent enactment of the State EAJA or to evade fee liability thereunder, the State Agency, faced with an ever- mounting fee exposure, realized that this fee liability could be leveraged into an effective fair hearing enforcement technique. In February, 1998, the State Agency informed the State Comptroller that such fees would henceforth be "charge[d] back to local districts...where the cause of the litigation was solely the local districts failure to comply with a [fair hearing-related] directive or decision."37 If this Court reverses the First Departments reinstatement of the catalyst test, the State Agency will again be permitted to sidestep State EAJA fee liability simply by mooting the merits 36 See Office of the State Comptroller Summary of Awards Made Pursuant to Article 86 for FY 1990 - FY2001 at Exhibit A. 37 See Office of Temporary and Disability Assistance Fair Hearings Process, Appendix B, pp. B-5 and B-11, at www.osc.state. ny.us/audits/audits/9899/97s42.pdf [accessed November 18, 2014]. 19 prior to judgment. In that event, intransigent localities will have no price to pay when they fail to comply with State Agencys fair hearing directives and the State Agency will have no price to pay when it fails to enforce them. The fair hearing process, once described by former Commissioner Perales as a "due process factory,"38 will merely churn out paper victories of no practical use to indigent appellants who depend on the State Agency not only to issue remedial directives, but to enforce them. C. ALTERNATIVE PROCEDURAL MECHANISMS WILL NOT DETER A STATE AGENCY FROM FAVORABLY MOOTING MERITORIOUS ACTIONS TO EVADE FEE LIABILITY. In its disavowal of the catalyst test, the Buckhannon majority was "skeptical" of the assertion, "unsupported" by empirical evidence, that the catalyst doctrine was necessary to prevent defendants from mooting actions in order to avoid fee claims. This possibility "only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendants change in conduct will not moot the case."39 Finding the catalyst test equally unwarranted, Justice Sweeny noted in his dissent that "sufficient remedies such as costs and sanctions exist in those cases which the agency unjustifiably refuses to act pursuant to a settlement or court order."40 38 Perales, The Fair Hearing Process: Guardian of the Social Service System, 56 Brooklyn L. Rev. 889, 892 (1990). 39 532 U.S. at 608-609. 40 106 A.D.3d at 98. 20 However, neither the insertion of a damages claim nor the imposition of costs and sanctions will deter a state agency from favorably mooting meritorious actions to evade fee liability. While Rule 130-1 of the Rules of the Chief Administrator does pose the risk of imposition of costs and sanctions under certain circumstances, these measures alone do not level the playing field for those who lack the means to attract private counsel to commence a proceeding in the first place. The Chief Judge of this Court has consistently proclaimed the urgent need to address the shortfall in legal assistance to the underserved poor who require such help to bring civil proceedings involving fundamental human needs.41 In the absence of counsel, there is unlikely to be a settlement or court order to enforce through costs and sanctions. Although the award of an attorneys fee is an available form of sanction, this potential source of compensation is only available if the litigant can show that the governments litigation position "is completely without merit in law."42 For State EAJA purposes, the litigant need only establish that the state agencys position is not "reasonable in law and fact."43 An attorney assessing the prospects of future compensation would much rather demonstrate that the states pre-litigation position is not "substantially justified" than show that its litigation position is "completely meritless", and would properly conclude that there 41 See Point II, infra. 42 Rules of the Chief Administrator § 130-1.1(c)(1). 43 New York State Clinical Lab. Assn, 85 N.Y.2d at 356. 21 is a far greater likelihood of payment in the form of a State EAJA fee award. Although Rule 130-1 authorizes a court to award costs or impose sanctions resulting from frivolous conduct, conduct is not frivolous unless it is "completely without merit in law."44 In the absence of the catalyst test, a state agencys strategic decision to favorably moot an Article 78 proceeding would have legal merit since the petitioner never obtained the judgment, order or consent decree purportedly required to support a State EAJA fee award. By definition, such a litigious tactic, however detrimental to the petitioners counsel, would not be a frivolous one. The Buckhannon majoritys faith in the remedial effect of damages is equally misplaced in the context of entitlement-related Article 78 proceedings. While claims for damages may generally be asserted in federal and state court §1983 actions,45 indigent petitioners who seek to enforce entitlement-related fair hearing decisions in Article 78 proceedings rarely, if ever, have a viable claim for damages. These claimants are thus particularly vulnerable to the exact governmental tactic that the Buckhannon majority sought to discount. In federal court, damages may be awarded "to compensate persons for injuries caused by the deprivation of constitutional 44 Rules of Chief Administrator § 130-1.1(c)(1). 45 See, generally, Memphis Community Sch.Dist. v Stachura, 477 U.S. 299 (1986); Carey v Piphus, 435 U.S. 247 (1978); Monell v Department of Social Servs, 436 U.S. 658 (1978). 22 rights."46 Compensable injuries include monetary losses such as out-of-pocket expenses and those arising from personal humiliation and mental anguish. Thus, for example, the Second Circuit affirmed an award of $500 in compensatory damages to an indigent family who suffered the indignity of begging for food after the New York City Department of Social Services wrongfully terminated their public assistance benefits.47 If the same public assistance household sought compensatory damages in an Article 78 proceeding to enforce a favorable fair hearing decision pertaining to their benefits, however, their damages claim would very likely fail by operation of law. This is because CPLR §7806 provides that ...Any restitution or damages granted to the petitioner [in an Article 78 proceeding] must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity. (emphasis added) When assessing eligibility for "incidental damages" under this provision, this Court, endorsing the analysis of the Second Circuit in Davidson v Capuano,48 held that the "damages.... incidental to the primary relief" only encompass the actual monetary loss suffered by the petitioner as a result of the 46 Carey v Piphus, 435 U.S. at 254. 47 Henry v Gross, 803 F.2d 757, 768 (2d Cir. 1986). 48 Parker v Blauvelt Volunteer Fire Company. Inc., 93 N.Y.2d. 343, 348 (1999), wherein this Court "...indicated our agreement with the Second Circuits holding in Davidson v Capuano, 792 F.2d 275 (2d Cir. 1986)." 23 contested governmental action, and excludes non-economic injuries such as loss of reputation, embarrassment, or mental anguish.49 Because "an Article 78 proceeding [is] a special proceeding designed to facilitate a summary disposition of the issues presented," the Second Circuit in Davidson reasoned that "the damage limitation provision of [CPLR] 7806 protects an Article 78 court from the burden of deciding numerous issues collateral to the primary relief the petitioner seeks."50 Thus, a construction of CPLR §7806 that prevents an Article 78 court from awarding civil rights damages "furthers the essential purpose of the special proceeding -- a speedy correction of improper action."51 If an EAJA fee award depends on the issuance of a favorable judgment, order or consent decree, an Article 78 damages limitation that was intended to facilitate the "speedy correction of improper [government] action" now assures the denial of the indigent litigants State EAJA fee claims whenever the government defendant moots the litigants injunctive claims before formal 49 Parker v Blauvelt Volunteer Fire Department Company, 93 N.Y.2d at 348 (1999) [dismissing prayer for $1 million in damages for "embarrassment, loss of reputation and mental anguish" in Article 78 proceeding to reverse job dismissal because petitioner "did not seek the restoration of any economic benefits derivable from his [prior job] status...."] See, Matter of Gross v Perales, 72 N.Y.2d 231, 236-237 (1988) ["Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary relief, is dependent upon the facts and issues presented in a particular case (cite omitted)... Incidental monetary relief has long been permitted in article 78 proceedings commenced in Supreme Court in a variety of administrative contexts (see, e.g., Matter of Gunn v Blum, 48 N.Y.2d 58 (1979)...."]. 50 Davidson, 792 F.2d at 278 (2d Cir. 1986). 51 Id. at 280. See Antonsen v Ward, 943 F.2d 198, 203 (1991). 24 disposition of the Article 78 proceeding. If, as in the instant appeal, the State Agency persuades the City Agency to restore the contested benefits at any time before final judgment, then the City Agencys belated issuance of these benefits simultaneously extinguishes any "incidental damages" claim for "actual monetary loss" -- a financial injury that by definition must precisely match the exact amount of entitlement benefits that were wrongfully withheld. The state court is then poised to dismiss the case in its entirety, including any post- Buckhannon claim for incidental damages. If a petitioner in an Article 78 proceeding sought the same damages for emotional and physical distress that the Second Circuit awarded to plaintiff in Henry, the latter portion of CPLR §7806 also would require the dismissal of that claim. Because "claims sounding in tort...must be brought in the Court of Claims,"52 recompense for emotional or physical distress would not be obtainable "...in an action or proceeding suable in the supreme court against the same body or officer in its or his official capacity."53 Petitioners who seek punitive damages fare no better. When the City Agency belatedly restored an indigent litigants food stamps in compliance with a fair hearing decision requiring that restoration, the First Department, in a procedural posture 52 Casillas v Perales, 154 A.D.2d 420 (2d Dept 1989), citing Gross v Perales, 72 N.Y.2d 231 (1988) and Schaffer v Evans, 57 N.Y.2d 992 (1982). 53 CPLR §7806. 25 analogous to the instant appeal, affirmed the lower courts dismissal of the petition on mootness grounds and denied a residual claim for punitive damages because such a damages award "exceeded the scope of an Article 78 proceeding."54 These Article 78 "damages limitations" hold fast in the face of extreme governmental misadministration in the delivery of public entitlements and the resulting hardships that befall indigents who depend on such programs for their very subsistence.55 Although the simple insertion of a damages claim may well assuage "petitioners fear of mischievous defendants"56 in federal court, this litigation strategy does little to inhibit New York State agencies that seek to sidestep State EAJA fee liability within the context of a state court Article 78 proceeding. 54 Matter of Shulman v Grinker, 184 A.D.2d 306 (1st Dept 1992). 55 See, e.g., Loftin v New York City Department of Social Services, 267 A.D.2d 78 (1st Dept. 1999), wherein a public assistance recipient commenced an article 78 proceeding to "compel [the City Agency] to pay....certain unpaid public assistance benefits [and] sought damages for pain and suffering." In its affirmance of the lower courts dismissal of this damages claim, the First Department, citing other precedent from this Court, held that Petitioners claim for pain and suffering, predicated on his alleged expenditure of time and effort in enforcing his right to unpaid public assistance benefits, seeks damages that are "consequential," not "incidental," to such relief, and, as such, cannot be awarded in the context on an article 78 proceeding (CPLR 7806; cf. Matter of Gross v Perales, 72 N.Y.2d 231; Matter of Garnett v Sobol, 222 A.D.2d 850, 851, lv. denied 87 N.Y.2d 810, cert denied 519 U.S. 849). 56 Buckhannon, 532 U.S. at 608. 26 POINT II THE STATE EAJA IS THE LAST LINE OF JUDICIAL ACCESS FOR INDIGENT NEW YORKERS IN NEED OF CIVIL LEGAL REPRESENTATION. On May 1, 2010, the Chief Judge of this Court delivered a Law Day speech which addressed a longstanding challenge that has grown even more difficult and urgent for our State in these dire financial times --- a challenge representing one of the most essential elements of the rule of law and one of the foundations of our democracy -- equal access to justice. * * * * It is an obvious truth that in civil proceedings involving fundamental human needs, it is extreme- ly difficult, if not impossible, for a person to be assured a fair outcome without a lawyers help. As Chief Judge, I see this as one of the great challenges facing our justice system today. No issue is more fundamental to our constitutional mandate of providing equal justice under law than ensuring adequate legal representation.57 In sobering testimony before the Senate and Assembly Standing Committees on the Judiciary, the Chief Judge sought to humanize the plight of those who require but cannot afford to retain legal counsel. Many of us cannot even begin to imagine what it would be like to have to fight for lifes most basic necessities -- shelter, personal safety, food, income, health services -- much less have to go it alone, without the help of someone with legal training. For these vulnerable New Yorkers, civil legal services are the ultimate safety net -- often the only means by which they can keep their lives afloat. Yet, even when the economy 57 See Chief Judge Jonathan Lippman, Law in the 21st Century: Enduring Traditions, Emerging Challenges (May 1, 2010), pages 15, 17 at http://www.nycourts.gov/ctapps/LD10Transcript.pdf [accessed November 18, 2014]. 27 was strong, these chronically underfunded pro- grams managed to serve only a fraction of those in need -- perhaps 20% or so. Clearly, our state is failing to provide low-income New Yorkers with meaningful access to justice.58 Sounding the same alarm, former Chief Judge Judith Kaye expressed concern in her 2002 State of the Judiciary address that access to justice "[not] be thwarted by lack of money, and surely not by barriers erected by the courts themselves."59 Noting that the poor are particularly hard-hit during times of economic downturn, she was "appall[ed]" in the face of such need that "we are meeting only a small percentage of the civil legal needs of the poor," and was deeply concerned that "available services may now dwindle even further."60 58 Press Release from Chief Judge Jonathan Lippman of Testimony before Senate and Assembly Hearing on IOLA and Civil Legal Services (January 7, 2010) at http://www.nlada.org/DMS/Documents/1263915337. 42/Testimony%20of%20Chief%20Judge%20Jonathan%20Lippman%201-10.pdf [accessed November 18, 2014]. 59 See Chief Judge Judith S. Kaye, The State of the Judiciary 2002 (January 14, 2002), page 6 at http://www.nycourts.gov/admin/ stateofjudiciary/soj2002.pdf [accessed November 18, 2014]. 60 Id. at page 11. The Chief Judge had ample empirical support for her observations. See e.g. Final Report to the Chief Judge of the State of New York of the Committee to Improve the Availability of Legal Services (April 27, 1990), page 9 ["[T]he unmet civil legal needs of the poor in New York is a critical problem that has a devastating impact on the lives of vast numbers of poor people who need legal assistance and cannot afford it."]; The Final Report of the Pro Bono Review Committee (April 18, 1994), page 46 ["The inability of the poor to obtain representation in judicial and administrative proceedings of critical importance to their lives is an affront to our system of justice and to the premise that all stand equal before the law, and are equally entitled to vindication of their legal rights."]; Report to the Chief Judge of the Legal Services Project, "Funding Legal Services for the Poor," page 3 (May, 1998)["The unmet need for critical legal services among poor New Yorkers has been thoroughly documented, is very great and is worsening. Poor people in New York State encounter literally 28 Although civil legal services organizations have limited public and private funding sources, the fee-shifting statutes are the only means for a private attorney to sustain a full-time poverty law practice. Because most law schools abandoned instruction in "poverty law" decades ago, the vast majority of private attorneys lack the knowledge base to represent poor persons in entitlement matters, and most stay within their professional comfort zone when meeting their pro bono obligations. Five years after the State EAJA was enacted, then-Chief Judge Sol Wachtler formed the Pro Bono Review Committee ("Review Committee") to assess the effectiveness of the private bars voluntary efforts and evaluate the feasibility of a mandatory pro bono alternative. The Review Committee conducted a three-year survey of the pro bono activities of 10,842 New York attorneys in a variety of professional settings to measure changes in the amount and nature of their pro bono activities. Of those in private practice, the Review Committee noted that "the smaller the firm, the more likely it was for attorneys who did not perform qualifying pro bono service to indicate that... their financial circumstances limited their availability" while "attorneys from larger firms were more likely to indicate that they did not have the time to volunteer or did not have the expertise in the legal areas required by poor persons." millions of problems each year without the assistance of a lawyer."]. 29 In percentage terms, 41.5% of 1,570 responding private law firms with ten or fewer members cited financial circumstances as the primary impediment to pro bono work, and 48.9% of all responding private law firms (1,556/3,183) cited a lack of legal expertise in the area required by the poor person. In September 2009, the Legal Services Corporation ("LSC") reported a further diminution of private bar involvement in addressing the civil legal needs of the poor.61 Among its findings, the LSC noted that there is one private attorney for every 429 persons in the general population, but only one legal aid attorney for every 6,415 persons who live below the federal poverty line.62 Among its conclusions, the LSC noted that "closing the justice gap and securing necessary access to civil legal assistance will require a multifaceted approach which must include...increased pro bono efforts by the nations lawyers."63 When meeting their pro bono obligations, the private bar, though loathe to admit it, is increasingly specialized. Even if a private attorney wished to accept an interesting pro bono assignment, that attorney is ethically bound to possess "the legal 61 Legal Services Corporation, "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans. An Updated Report of the Legal Services Corporation" (September 2009) available online at http://www.lsc.gov/pdfs/ documenting_the_justice_gap_in_america_2009.pdf [accessed November 18, 2014]. 62 Id. at page 1. 63 Id. at page 2. 30 knowledge, skill, thoroughness and preparation reasonably necessary for the representation," and must decline a legal matter "that the lawyer knows or should know that the lawyer is not competent to handle."64 When it comes to securing government benefits for the poor, the "preparation reasonably necessary for the representation" can be daunting in its breadth and depth. The federal judiciary has described federal entitlement legislation as a "tangle" which "now rivals the tax area as a marvel of complexity,"65 and a "statutory web almost unintelligible to the uninitiated."66 The United States Supreme Court characterized the Medicaid portion of the Social Security Act as "among the most intricate ever drafted by Congress,"67 and the Second Circuit, in less diplomatic terms, called the same provisions "an aggravated assault on the English language" which leaves "one who interprets them with less than robust confidence."68 One federal district judge, unsure of his own legal footing, lamented that one provision of the Social Security Act was "a virtually impenetrable thicket of legalese and 64 22 N.Y.C.R.R. §1200.0 Rule 1.1(a) and (b). 65 Mont v Heintz, 849 F.2d 704, 706 (2d Cir. 1988). 66 Sherman v Griepentrog, 775 F.Supp. 1383, 1390 (D.Nev. 1991), citing Friedman v Berger, 547 F.2d 724 n. 7 (2d Cir 1976), cert denied, 430 U.S. 984 (1977). 67 Schweiker v Gray Panthers, 453 U.S. 34, 43 (1981), citing Friedman, 547 F.2d at 727. 68 Lynch v Philbrook, 550 F.2d 793, 795 (2d Cir. 1977). 31 goobledygook."69 In New York State, Respondent-Appellant Berlin, as Commissioner of the State Agency, is required to provide a system of fair hearings to those who decide to contest local determinations pertaining to these benefits,70 and is obliged to enforce fair hearing directives issued to local social service districts.71 Fair hearing decisions are final and "shall be binding upon the social service districts involved and shall be complied with by the social services officials thereof."72 If a victorious fair hearing appellant complains that a local social service district has not complied with a fair hearing decision, the State Agency must "secure compliance by whatever means is deemed necessary and appropriate under the circumstances of the case."73 69 Lamore v Ives, Civil No. 90-92, slip op. at 4, 1991 WL 193601 (D.Maine 1991). 70 New York Social Services Law §§22[3], 29, 34 and 364[1]; 18 N.Y.C.R.R. §§358-3.1(b) and 358-6.1. 71 See Thomasel, 78 N.Y.2d at 570, wherein the Court of Appeals, in a case similar to this one, described the New York State administration of public assistance benefits as "an interconnected and inextricable chain of authority, with ultimate power reposed in the [State Agency]. The [State Agency], under Federal and State law, has the duty to supervise [public assistance programs] and is authorized to sanction local districts for failure to comply with [state agency] rules (42 U.S.C. § 602(a)(3); Social Services Law § 34[3][d]; § 20[3][e])." 72 New York Social Services Law § 22[9](a); see, 18 N.Y.C.R.R. §§358-4.4, 358-6.1(a) and (b), and 358-6.4. 73 18 NYCRR §358-6.4(c). In furtherance of his statutory responsibility to enforce fair hearing decisions, State Respondent is authorized to withhold financial reimbursement from recalcitrant local social services districts, or sue them for declaratory and 32 In the instant case, the State Agency, rather than exercising its sweeping authority to investigate and correct local intransigence, simply accepted the City Agencys self-serving "compliance report" at face value and aborted any further enforcement actions, thereby compelling the filing of this Article 78 proceeding. The lower court readily conceded that Ms. Sollas petition "was undoubtedly...the catalyst for [City Respondents] compliance; indeed, it appears that it was the only way left for her to get their attention after being ignored for months." [R14] Such a record cries out for recompense to the attorney who enabled Ms. Solla to enter the courthouse doors. If the catalyst test is not restored, the "judgment-to- prevail" rule will surely dilute the financial incentive that the State EAJA was enacted to encourage and further diminish the ever- shrinking pool of attorneys willing to immerse themselves in the complexities of entitlement law with little or no prospect for reasonable compensation. CONCLUSION For these reasons, it is respectfully requested that this Court affirm the First Departments reversal of the lower courts denial of a State EAJA fee award, restore the catalyst test as the appropriate means to assess such eligibility, and grant such an injunctive relief. New York Social Services Law §§20, 22[11] and 34. 33 award to Ms. Sollas counsel. Dated: Sea Cliff, New York Law Office of Peter Vollmer, P.C. November 18, 2014 By: Peter Vollmer, Esq. 19 Hawthorne Road Sea Cliff, New York 11579 (516) 277-1156 34 EXHI,BIT 11 " .. • , .. "". STATE OF NEW YOAt< ~ .. Wl OFFICE OF THE STATE COMPTROLLER AJ.a/IHY. NEW VORl< 12238 EDWARD V. REGAN . STATE COMPTROLLER Febzouazy 10, 1993 "ACQUIUNE SHERIN ASSISTANT DEPUTY COMPT'ROI.I.EA 1IoI10J:able Hazio H. CUomo GOYez:ftOr state of Hew York State capitol Albany, Hew York 12224 :tn accoJ:Clance with Chapter 770 of the Laws of 1989 ad baaed upon 1nfo:mation provided by tbe Department of Law, I eubm1i: to you the 1992 azmual report for awaJ:Cla made purauant to Article 86 of the CPLR for the 1991-92 State Fiscal Ye~ (3XBIBI~ A) and a reviaed annual ~~ fOJ: the 1990-91 State F.Lacal Yeu (BDIB:t~ B MVIDD) baaed on updated infomation received from the J)epU1:llaD.t of Law. Sincerely, ~" / ~/{L~ .. ~ ... ~ \,,--..: ........ ," J " .' JtcClUelizie She:in ''""1G..iatant Deputy CoIIlptro11er Di,,181on of Pre-Audit aDd AccOUft1:1ng Operations . :"' • ., ~ l.. . . . .. .. , EXHIBIT B UVISBI) OITICZ or '1'HB S'tA'1'I ~ SUKtIUY or AWARDS HADE PORSUAlft' '1'0 AR'tICLB 86 APRn:. 1, 1990 - DRCH 31, 1991 'litle of Date of , ea •• Award Vugaa v. Sabol 10/22/90 Lawson V. Pcale. 11/08/90 H. Brown V. Pa2:&le. 12/06/90 OlivaI' V. Pvale. 12/13/90 8ngel V. 1'erale. 01/04/91 Dw:~t v. 1'aral •• 03/21/91 Swn:otal Amended Award. HeJ:chut D. Perale. 11/90 Cdzzla V. 1'ual •• 11/90 Pluellen v. Perale. 11/90' 'total of Doll" Amount • Revised awuda baaed on upSatecl 1nfonatioft &'ece.t.veCS frCll the Dept. of Law. AIIOWlt Agency of Award Involved $ 1,812.50 SOCial Service. 500.00 SOCial Se"ice. 600.00 Social Service. 1,155.00 Social Services 500.00 SOcJ..al ServJ..c •• 1(200.00 SocJ..al service. $ 5,767.50 1,000.00 * Social Service. 500.00 * Social Services 4,750.00 * Social SeJ:Vic .. $12,017.50 " .'\ '. . .. • STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER AlBANV. NEW YORK 12238 EDWARD Y. REGAN , STATE COMPTROLLER Febraary 10, 1993 Bono~aJ::Jle HU'.i.o H. CUomo GoYenor , State of lIew York State capJ.tol Albany, New York 12224 -tACQuaJNI SHERIN ASSISTANT DEPUTY COMPTROLLER :tn accordance with Chapter 770 of t:he Laws of 1989 and baaed upon iDfomat.i.on prov1ded by the Department of Law, I aubm1t: to you the 1992 unual repoz:t f= awucls mac!e pu~8Uant to ~1cl. 86 of the CPLa for the 1991-92 State F1scal Ye~ (BXBtBt~ A) and a ~eviaed annual repo~ for the 1990-91 Itate Piacal Ye~ (BDtBt~ B UVtSBD) baaed on updated infomation ~8Ce.i.va4 from the Department of Law. &jh Attac=-t . ... . . , UBIBIT A • OITICZ or '1'HB ftA'l'B COHP'1'JU)LLBa SmalARY or AWARDS DOB 'URSUAI'l' 'fO Aa'1'Ia.B 86 APRIL 1, 1991 -~ 31, 1992 ' '1'.Ltle of Dat. of AIDOuAt A;8ncy ca •• Awarc! of Awarcl Involvecl Irvin V. P • .ral •• 06/12/91 $ SOO.QO Social S.n1o •• Lamb V. Peral •• 06/19/91 1,200.00 Sooia1 S.nio •• Sourac1a V. Lehman 07/29/91 2,"943.90 Parka Q Rec:. Chuey V. "'a1 •• 09/26/91 700.00 Soo1a1 servl0 •• ' Ste.i.mel V. Peral •• 12/18/91 0.00 * Soo!al 8el'Vlc •• Vanasoo v. Peral •• 12/19/91 750.00 Soola1 SC"'I'ice. Vazquez V. 'erale. 01/06/92 2,000.00 Social Sarv.Lce. ~ff&10 aroaclcuting 01/23/92 500;00 Cor.rec:t.Lon8 v. DOCS Gzune.rt: V. Peral •• 02/14/92 0.00 * Soc1&l Sanioe. Bey •• V. Peral •• 02/18/92, 0.00 * Soo.La1 serv.Lc:e. 'rO'1'AL OF DOLt.D AJIDUR'1' $8,593.90 • • * l'ee8 va.Lved .' " . ~ . . , . \ . ' , STATE 01' ~E\\' YORK H. C,\RI. ~1cf:"IJ. OFFICF. 01: THF. ST:\ TF. CU)IPTROLU:R ,"LB":>"', !\&IL' \'t)ltK ::!" JCJH~ J. FEESE\' DEPI. T\' COMPTROLLER Tel: I~"'''~J..~J Fa:15 ....... ~ IT" TE CO)IPTROI.I.ER '!be lIoDo~abl. 1lU1o II. cw:ao Gogeamo&" Sta~. of ... Yo~k .ta~e C&plwl ~y, MY 12224 .pd.l 12, 1"4 ID ~ wl1:h ~ '7'70 of the La.. of 1,a, ucS Haed upoD 1IIfcmIa~1oD l*O¥1cSecl by ~ .. DeputaeD~ of Law, I 1IUbaa1~ w yoa ~be 1"3 anaual npoft fo&" awud..... pUZ'.UaD~ w A&1:101e 8' of the CPL1\ fO&" ~.. 1"2-93 ata" J'1.cal Yeu (UBXIX2: A). SJ.Dcenly, J~~' DepII~J' CCIIptrOllc D1v1.1oD of PJ:e-AucU.~ ancI AaGouIlt1ng Opera~1oD. . .. . :. . .. • t URIBIT A OPPles or 'nIB ftAD COIIP'fBOLLD SUllMAR1' 0' AWARDS MADII 1tVItStJJUIr1" 'lO ARTICLE 86 APRIL 1, 1992 - MaRCH 31, 1993 Title of ca .. 01 ... V. Peral •• Alexander V. cuomo aur ••• Aaaoc. of Ctrl. e 'I. JfcBaJ:nette Peno V. Bane Ic_r. V. CO\I9hU,ft JObin WahJ:p1'oot1n9 corp. V. Bov..in9 pJ.auce Agency ltiftJ:a V. Perale. Tu~V. Langdon '1'OTAL OF DOLLAR AHOUft • -110 t_ aWU'ded •• Fee. waivecS Date of Awud 06/01/92 06/25/92 08/14/92 08/14/92 10/01/92 10/22/92 11/30/92 02/26/92 Amount Agency of Award Involvecl $ 0.00 * Social Senice. 40,000.00 Kental Health 13,915.00 Healtb 250.00 Social Sert'ice. 1,826.00 COrrection. 37,236.95 1IcN.in9 P1nanc:. 0.00 ** Social 8en'1ce. 0.00 * 800ial sen1Ge. ,93,227.95 --- .' . .. • • .' . STATBOPNBw You oma OrTBESTATlCOMP'l'ROLLER ALINIY,NlWYOIIIt 18 The JIoaorable 1lu1o IC. CUOIIIo GoverDoJ: State of ... York Staw capLtol AlJ:Nm,y, BY 12224 Hay 3, 1994 lA accoZ'daDce wLth ~ .. 770 of 'the LaWII of 1989 ad b&Mcl uS*' Ln!OI:IICLoft ~1cIed by 1:he D~ of Law, I 1lUblLt: 'to J'OU t:he 1994 AllAUal xeport fOJ: awu:da made pw:-...n't 'to Afticle 86 of 'the Cl'LR fOJ: 'the '1993-94 state I"Lecal Y .. · (UBIBIT A). J~~ D8plt:y c:caapt:J:oll_ DL",181oA of »ze-AWSLt: ad :Accout1D9 Opezat:1ou BDIII'! A I OJ'I'ICII 01' DB ftAB CCHPDQLt.II1\ SUNKlU' 0., AW.UDS HID. IOltSU'.Ift m AllTIc:.B 8' APIUL 1, 1993 - ICU.CII 31,' 1994 '!11:1e of Date of AIII01.u1t ~ ca •• AWard of AWard 111"1Olvec1 •• un1e V. Peral •• 05/01/93 • - 0 - - loclal service • !CeleneSe. V. Kalac!jlan 0'/01/93 1,000.00 Scclal Suv1c.a .:ral&~ V. Pe&"al.a 07/01/93 750.00 8001&1 Suvleea az:yant V. Bane OS/01/93 750.00 SOo!.al len~a Wl110ughby V. Bane 09/01/93 1,437.50 8Oo1al luvlc.a Phelps V. Ro •• 09/28/93 500.00 loolal Icv1.ee. Hathaway V. Kalac!j 1.an 10/12/93 - 0 - -* Soola1 Serv10 •• Abt:amo V. Dept. of State 12/01/93 - 0 - .. Dept. of Itate GJ:eU V. Sabol 12/07/93 850.00 Scc1al Sez:v1ce. G&11at!.n v. DowlJ.nq 01/20/94 250.00 SOC:lal lez:v1.ee. I.4aonud V. Dowl1Dq 01/21/94 - 0 - *** loolal Senloea 1'ODL 01' DOLLIR JUfOUJI1' $ 5,537.50 • •• * 110 I'M AwucIacS ** Bo App11oa1:!.on "#OJ: .,_ **.~ rae. Wa1"Nd . STATIOFNIW YORK . B. CA1IL MeCW. &TAm COMPi'acua Omczor1SSTATBCOMPI'aOLLBR ALIMIT.NlWYGB I2DI : .... The HoDorable Gecqe PaIaki. Gownlor State ofNcw York State Caoitol Albany, NY 12224 Dear Governor Pataki: October 2, 1995 In accordance with CJJapter 770 of the Laws of 1989 and based = ~~~:~~~~ro!~ 1994-95 State F"18C8l Year rr A). . Sincerely, lohnl.F~ Deputy ComPtroller , . " I '. .. .. . .. " Oft'XCB O~ 'rBB STAD COIIIftOLL1IIL SVlllWtY O~ A1fUI)S lADS PUI8VM'S' TO UTXc:r.B 86 URXL 1, 1994 - II1U\CB 31, lJJS Title of Dau of a.ouat SMe Ayg4 AI IMtr4 BZ'OWD v. Dawlbsr 04/01/94 $ 500.00 Ba •• v. Ban. 04/101/94 -° - •• Lyou v. Stou 04/20/94 555.00 1001&1 StlZ'ric .. .roJ:uulOD 'Y. l'e~al •• 04/36/94 5,306.00 ~:la 'Y. DoWliAsr 05/01/'4 '50.00 KellY' v. StOJl8 05/01/'4 ",600.00 1Iba1-. v. DowliDa' 06/22/'" 2,080.00 Dowli1lg 'Y. suol 06/27i", 3,052.52 Social S.Z'Vic •• IIaftay v. StOJl8 08/15/94 3,900.00 Social "Z'Yio_ Gn-. 'Y. Dowli11.g 09/01/'~ - a - • 1001&1 8.m.ae. tioe 'Y. l'ezoal •• 01/30/'" 30,000.00 C8D &lUI ••• 1ey v. IIIYS -OIIRJ)J) 10/28/94 .. 0 - • 'aooctriA v. Jlv.n:'ay ad_. 11/31/' .. 87,500.00 .ro1lll.OA v. l'ual_ 12/01/94 '82.00 lOoial SeZ'9'1c •• Aalld.cJl: 'Y. BaDe 01/13/95 20,000.00 Soci&1 8eZ'9'ic •• Maxwell 'Y. Dowl~ 02/oi/tS 500.00 SOCial ,..,,1c_ vol:1aa2:- v. Dowllasr 02/02/95 .. 0 - ** Social ieZ'Vio •• Ba:nett v. state 02/21/95 .. 0 - ** Paaaho~.t v. Sabol 02/2'7/95 .. 0 .. .. Soci.l SeZ'V:Lc •• Si2:'io& v. Bue 02/27/95 Q - ** Soc:Lal s."10 •• 'fOTAL O~ DOLLU. UlO'Oft $159,625.52 • Ho ~... Awazocled *.. 1'... Denied ·' ,,". , STA'I'B OFNBWYORK omc&n-~OI"'l"lmftA.D~ July 18, 19M The 1IoDorab1o (]corp Pataki Oovcmor S1ateofNewYork S1ate Capital A1baa.y, NY '12224 Dear Oovemor Pataki: A.E. SMITH STATE omcs BtJILDINO ALBANY. NIW YOIUt 12236 In accordanco with Chapter 770 of tho Laws of 1989 ancl based upon information povicIecl by die DepIItmeGt of Law, I submit 10 you the 1996 annual report tbr awards mado pursuaut to Articlo 86 of the CPLR. for the 1995-96 State Fiscal YOIl' (BXHIBlT A). . SiDcereJ.y , lah • Attacbment ., , " ....... • T' ,., , OII'%CI 0'1 .,.. ft&D Cc.Pf.)f.!·P --.ay CJII AWDD8 D.DB nIl8UI1It '10 AIlUc:LB e. uaDa 1, U'5 - JIU.CI8 31, 1 ••• .,itl. of cu- ADdezaOD ~ " .... 8GOftiu ". CGaglIliD 1IlazP7 ". 1fbg eaa or% .... • .... ". DOL, .tIa1 * .0 ..... AW&Z'4e4 * * ..... n.zd.e4 Date of _rt IM/Ol/.5 0'/02/'5 0'/2'/'5 oe/Ol/95 0'/2'/'5 10/01/95 10/19/'5 12/1./'5 12/18/95 01/08/" 01/30/ •• &1IoaDt ~ 0' .... Jan1n4 • 1,000 8oaia1 sftvi •• - 0 - ** 800ia1 8enoia •• - 0 - ** 80aial 8eZ"9'i •• 5,850 Ioaial 8U'ri.oe. 1,"0 c:oa:.csti-.a1 1mI •• 1,500 80cial 8enoia •• 30,'.0 LUoc - 0 - * Coa:eati-.a1 ha •• - 0 - • ~ Vlatiaul 21,377 - 9 - • • pcta? • .... .. The Honorable George Pataki Governor State of New York State Capital Albany, NY 12224 Dear Governor Pataki: September 4, 1997 , In accOrdaIa with ~ 770 oftbe Laws of 1989 ad baaed upon iDhmatiOll provided by the ~ of Law, I submit to you the 1997 ammal nport for awards made pursuant ,to Article 86 of tho CPLR for the 1996-97 State Piscal Year (BXHIBlT A). ajh Attaclunent Robert H. Attmoro Deputy Comptroner ~' " .. . .... . .. ornc:a 01' DB 8'AD COUftOJ,T,n 8'CD111a.aY 01' UUDI IIIDII nu1lUll '10 l\l\ftCLll 86 DIaL 1. 19" - DaCE 31, 1997 'litl. of Dau of A1IoImt ApD.cr ga,. tr"" 9'''' Jpyp1ye4 eoll.Z' ". Jloae 06/01/96 • 3,000 loaial len'ice. Lel1i. ". tisat 05/02/If - 0 - * Social Sen'io •• 1'1yma ". lID Btla1o. c:oaa 0'/10/96 20,000 ft Bw.o. c::c.a. C!Z'o..-1cnuu! I'ezzy ". DO'1' 06/21/91 30,000 DO'! Boyla4 ". _.al •• Of/26/" - 0 - * 80CIlal sen'io •• Bl0D4 ". But II Wi"8 0"1/19/96 13.000 Social S.nio •• auth x. v. W_ 08/12/16 22,828 ~al Se2:ri.e •• ~". ala •• 12/01/16 - 0 • * Soo1&1 IUYice. o.tzoow". au. 01/10/91 - 0 • 1ft locial IRYte •• '1'O'1'AL 01' DOLLaJl AIIO'O!I'l . • 11.lal . .0 1'... AwaJ:Cle4 . . . ' " -... .",. H. CARL McCALL STATB COMP'l'ROl.LBR . . 0.. Oovemor PabIki: STA'lBOP'NBW YOU. A. B. SMlTH SfATBOPFICB aUll.DlNO ALBANY. NEW YOB 12236 omc:& OPTBI &TAU COKP'l'IlOLLBR Aupst31,1998 0: AIticle 86 of tile Civil Pl8ctice Law & Rules New York _'I ~ Aocea to.Taldce Act allows the lOCO,.,. of C01III8I1fees aacl other ...... .,.DI in _cain actioDs apinst the Slate ofNew York. CouItI C8Ilawmi JDIVIiIiDapmia, Ok.than 1he State, fees aDd OCher =:- iDcmred by such party fIi 8IIJ civil' ictioh ~ ..... S1aIe.1JDless the Coalt fiDds the poI1tion oltbe State was substaada11Y jus8fIecl or tbat special chaamstances mab aD aW8ftf uqjust. Pees shall be •• 'IJned by ~ 1IIII4ret rates for the IdDd ad qua1!ty oftbe same. ftmftbed, caa:ept that teea 8ad ...... ~ DOt be awaaW 10 a party tbr 8Il'J po.rdoD oftbo lid", in wIIici the party has amDlllOllably pI01I'8Cted the ~ Annpa1ly, 1he ~. ofIice is to zeport the DItUIe aDd amouat of each aWIId in the previous &cal ,..~ the apacy iDvolwcl in _ actioD, aDd otherrelevaat 1Dtbrmad0Jl WhWa miaht aiel the LetP*in ad thoOcmmor in evaluatiDg the scope aDd impact ofsuch awards. Bxbibit A sbows the State paid $16,soo to prevailiDa parties for tho ~m·98 S1ate Piscal Year. lab Attachment Yours truly, J C?-It~ Robert H. Attmore Deputy Comptroller ------". 0I'ftCI a. ..... c:aIIPD#rT. 81IICaU a. ....... IUI8UM1! ~ DUCL1I '6 ABIL 1, 1..., - ... 31, 1198 Dated A1Ioaat ~ ,mn' of ..... · Pn'a\n4 0~/1"/" • 1,000 ~ 06/2"1/'" 11,000 DBCa aat:1a' 9. CD: "" OS/20/t8 4,500 c.Beatir· 01/28/11 - Q - * ~ I .... ""'08 , 1':'99 '.~ ", .,: ' ...... , . ;- . H. CARL McCALL STATE COMPTRQILER A. Eo SMITH STATE OF'PICE BUB.DINO ALBANY. NEW YORK 12236 STA1'B OFNBWYC8C OJIIICB OI''ID STATE 00MP1'R0LLER TIle HoDorabIe Georae Pataki