This Court should also award Plaintiff the “costs incurred . . . in the litigation” against the government because he is a “prevailing party.” 28 U.S.C. § 2412(a)(1); supra § I.A. The costs 16 that Plaintiff seeks here are minimal and non-controversial, consisting only of the mandatory $350 filing fee assessed by this Court. Second Manes Decl.

7 $1,503.00 LODESTAR TOTAL: $967,060.40 III. Plaintiffs’ Claimed Costs are Recoverable Under the EAJA The EAJA allows a prevailing party to recover “fees and other expenses” associated with litigating its claim. 28 U.S.C. § 2412(d)(2)(A). The Second Circuit has found costs to be broadly recoverable under the EAJA, including all out-of-pocket costs that are ordinarily billed to a client, such as photocopying and transcript costs.

Id.; Poole Motion for Attorney’s Fees CIV-07-01526-PHX-NVW2 Case 2:07-cv-01526-NVW Document 38 Filed 07/04/08 Page 12 of 21 -13- Motion for Attorney’s Fees CIV-07-01526-PHX-NVW2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Rourke, 779 F. Supp. 1546 (E.D. Cal. 1991). See also Local 3-98, Int'l Woodworkers v. Donovan, 580 F. Supp. 714 (N.D. Cal. 1984) (finding that an award pursuant to 28 U.S.C. § 2412(d) may compensate a prevailing party for attorneys’ fees incurred for work performed before the effective date of the statute, for counsel’s out-of-pocket travel and telephone costs, and for work connected to the motion for attorneys’ fees); Palila v. Hawaii Dept. of Land and Natural Res., 512 F. Supp. 1006, 1010 (D. Haw. 1981) (“In addition, [under the Endangered Species Act] plaintiffs are awarded, as part of reasonable attorneys’ fees, $ 621.50 as reimbursement for travel costs from San Francisco to Honolulu for oral argument.”)

Under EAJA, costs are lilnited to those "enumerated in section 1920 of this title." 28 U.S.C. 2412(a)(1). As pertinent here, section 1920 limits recovery for costs to (1) fees of the clerk or marshal, (2) fees for transcripts, (3) fees for printing and witnesses, and (4) fees for copying.

By failing to include, in the final version of the statute, the limiting language regarding judicial review of an agency action, the Legislature necessarily intended that, under 1989 bill, the right to an award of attorneys’ fees was not to be so limited (see In re Grand Jury Subpoena, 93 NY2d at 738 [1999]). Further, the EAJA expressly states that it is be interpreted consistently with the Federal EAJA, codified at 28 USC § 2412(d) (see CPLR § 8600). The provision that is absent from the 1982, 1983, 1984, and 1986 bills, surely because they were so unlike the Federal EAJA.

See, Human Rights Law. Thus, even under 28 U.S.C. § 2412(b) the United States qua employer is liable for harassment and/or discrimination only "to the same extent that any other party would be liable under common law or under the terms of any statute which provides specifically for such an award"; here, however, there is no such extent. Indeed, and entirely contrary to the Federal EAJA provisions at issue in Villescas, Kimmel seeks to and the Appellate Division does in fact impose a burden on the State which no other New York employer bears: liability for attorneys' fees in Human Rights Law cases.

See Perales, 959 F.2d at 1072 (§ 2412(d) is alternative basis for claim of fees based on whether government’s position was “substantially justified” and must be evaluated separately).

We have calculated rates for law clerks and paralegals at “the lower of either the prevailing market rate or the statutory rate of $125 per hour ....” See, e.g., Wilson v. Principi, 16 Vet. App. 509, 511 (2002). B. Because Defendants’ Underlying Conduct in This Litigation Constitutes Bad Faith, Plaintiffs Are Eligible for a Fee Award Based on Prevailing Market Rates The second waiver of the United States’ governmental immunity is set forth in 28 U.S.C. § 2412(b). Unlike § 2412(d), there is no statutory cap to the hourly rate for attorney fees under § 2412(b); rather, counsel is permitted to claim a “reasonable rate.”

Marine Cleaning, 43 Fed. Cl. at 725, 727. Plaintiff in that case had also engaged in an administrative action before the GAO; those fees were disallowed, and the Court considered only the portion of the fees clearly attributable to the civil action in federal court under 28 U.S.C. § 2412. Id.

The federal EAJA limits a final judgment as a “judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G). The New York EAJA expands that definition to include final and non-appealable judgments “and settlement.”