Bathrick et al v. Astrue
ORDER granting 27 Plaintiff's Motion for Attorney Fees. See attached Order. Signed by Judge Thomas P. Smith on September 24, 2012. (Pylman, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:11-cv-00101 (VLB)
MICHAEL J. ASTRUE, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION
RULING ON MOTION FOR ATTORNEY'S FEES
Pending is plaintiff's motion for an award of attorney's fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d)
(1) (A) [doc. #27] in the amount of $16,443.96.
does not contest that the plaintiff is the prevailing party.
justification for an award of attorney fees in this case. However,
the Commissioner argues that the hourly rate the plaintiff seeks is
too high and that the number of hours that the plaintiff has billed
on this case is unreasonable.
This Court disagrees.
plaintiff seeks for hours he billed in 2010, 2011 and 2012.
the Equal Access to Justice Act ("EAJA"), the rate of compensation
is capped at $125 per hour, which may be adjusted upward to account
for increases in the cost of living.
28 U.S.C. § 2412 (d) (2) (A).
The plaintiff seeks cost of living increases resulting in an
adjusted rate hourly of $188.35, based on the Consumer Price Index.
See Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992) (holding
that "cost of living" is not defined in EAJA and is "properly
measured by the Consumer Price Index").
The Commissioner argues
that the plaintiff should have calculated separate hourly rates for
each year work was performed, as opposed to applying a uniform rate
across multiple years.
Accordingly, the Commissioner submits that
the appropriate hourly rate for work performed in 2010, 2011 and
2012 according to the National Consumer Price Index is $175.06,
$180.42 and $182.97, respectively.
Some judges in this district calculate separate increases in
the cost of living from year to year, awarding a different rate for
each year in which an attorney worked on a particular case.
e.g., Ruling and Order Granting Mot. For Attorney Fees, Crossman v.
Astrue, No. 3:08cv1823 (MRK) (D. Conn. Oct. 1, 2010), ECF No. 50.
That approach no doubt results in fair compensation for services
exactitude of a pricing index and invites judicial intervention
every time an attorney charges a few dollars more than the hourly
rate prescribed by one of a number of contested billing metrics.
See e.g., Taylor v. Astrue, No. 3: 09cv1791 (MRK) (D. Conn. May 9,
2011) (stating that "28 U.S.C. § 2412(d)(2)(A) does not specify how
'increase[s] in the cost of living' and declining to "conclusively
decide which [cost of living index] should be used").
Although it is the plaintiff's burden to establish entitlement
to a fee award, his hourly rate for work performed does not require
adjustment simply because it differs slightly from a certain cost
of living index.
Rather, this Court has discretion to determine
what fee is "reasonable."
433, 437 (1983).
See Hensley v. Eckerhart, 461 U.S. 424,
This Court therefore joins in the practice of
other judges in this district to permit attorneys to recover fees
under the EAJA at a uniform rate across multiple years, so long as
the fee charged is reasonable.
See, e.g., Lee v. Astrue, No.
3:09cv1575 (CSH) (JGM), 2011 WL 781108, at *3 (D. Conn. Feb. 28,
Despite the fact that a degree of pricing latitude with
standard, the Commissioner argues that the plaintiff's hourly rate
is unreasonable because it is roughly three to ten dollars too high
depending on the year in question.
Not to be deterred by a recent
unfavorable ruling in Stanchfield v. Astrue, No. 3:09cv2105 (WWE),
2012 WL 1069174 (D. Conn Mar. 29, 2012), in which a court in this
district expressly approved the plaintiff's hourly rate of $188.35,
the Commissioner asks this court to use its judicial resources to
adjust the plaintiff's attorney's fees downward by the small amount
This Court refuses to do so, and, accordingly, finds
that the plaintiff's hourly rate of $188.35 is reasonable and
The Commissioner also contends that the overall amount of time
the plaintiff charges in this case is excessive.
billed 87.3 hours of work, which is greater than the amount of time
other lawyers typically bill for social security cases.
throughout the Second Circuit have consistently found that routine
Social Security cases require, on average, between [twenty] and
[forty] hours of attorney time to prosecute."
Ledonne v. Astrue,
No. 3:08cv1525 (PCD), at 7 (D. Conn. Apr. 6, 2010).
Court is aware that the plaintiff spent approximately 20 hours to
file a response to the Commissioner's motion to affirm the decision
of the Commissioner.
While a response to a motion to affirm is
certainly permitted, it is not common practice. See Stanchfield v.
Astrue, No. 3:09cv2105 (WWE), 2012 WL 1069174 (D. Conn Mar. 29,
Nonetheless, a response in this instance was necessary in
reasonable given the favorable result achieved by the plaintiff.
The plaintiff was also obliged to bill approximately four
hours responding to the Commissioner's objection to this Court's
recommended ruling, as well as an additional 12.7 hours to file a
reply to the Commissioner's motion in opposition to the plaintiff's
request for attorney's fees.
The Court finds these expenditures
reasonable in order to respond to the Commissioner's arguments.
See Trichilo v. Secretary of Health and Human Services, 832 F.2d
743, 745 (2d Cir. 1987) (stating "plaintiff is entitled under the
including those related to any litigation over fees, and any
response to the Commissioner's motion to affirm, meant that the
reasonable legal work not typically required in an "routine" social
The plaintiff spent the majority of the balance,
some 40 hours, on the motion for order reversing the decision of
The Court has reviewed that thoughtful and well
reasoned motion and finds that the plaintiff has sustained his
burden of establishing entitlement to the fee for the amounted
The Court has carefully considered this motion, memoranda in
support and opposition, as well as the plaintiff's affidavit and
time records, and finds that plaintiff's hourly rate ($188.35) and
hours expended (87.3) are reasonable. Accordingly, the plaintiff's
motion for an award of attorney's fees and costs pursuant to the
Equal Access to Justice Act [doc. #27] is GRANTED.
award's plaintiff attorney's fees in the amount of $16,442.96.1
The fees may be paid directly to plaintiff's counsel pursuant to
the Assignment of EAJA Fees if it is shown that the the plaintiff
owes no debt to the government that would be subject to offset.
See Astrue v. Ratliff, 130 S.Ct. 2521 (June 14, 2010) (holding
attorney's fees awarded under the EAJA are subject to offset to
satisfy claimant's pre-existing debts to the government).
This is not a recommended ruling.
This is a ruling on
attorney's fees and costs which is reversible pursuant to the
"clearly erroneous" statutory standard of review.
28 U.S.C. § 636
(b) (1) (A); Fed.R.Civ.P. 72 (a); and D. Conn. L. Civ. R. 72.2.
such, it is an order of the Court unless reversed or modified by
the district judge upon motion timely made.
IT IS SO ORDERED.
Dated at Hartford, Connecticut, this
day of September,
/s/ Thomas P. Smith
Thomas P. Smith
United States Magistrate Judge
The plaintiff seeks $16,443.96 for 87.3 hours of work
performed at a billable rate of $188.35. The plaintiff has
miscalculated the sum by one dollar. He is entitled to a total
fee award of $16,442.96 for legal services rendered, not
16,443.96 as requested.
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