Beck v. Astrue

Filing 45

ORDER granting in part and denying in part 43 Motion for Attorney Fees. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 3/25/2013. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOYCE BECK
v.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

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CIV. NO. 3:11CV01185 (JCH)

RULING ON MOTION FOR ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO
JUSTICE ACT [Doc. #38]
On January 17, 2013, counsel for Joyce Beck moved this
Court under the Equal Access to Justice Act (“EAJA”), 24 U.S.C.
§ 2412(d), to award attorney’s fees in the amount of $9,054.51.
In support of the fee petition, Attorney Charles A. Pirro, III,
filed an Affidavit describing the work performed on the case and
an itemized bill representing 48.10 hours of work performed in
2011, 2012, and 2013, at hourly rates of $186.36 for 2011,
$188.65 for 2012, and $189.23 for 2013. [Doc. #38].

The

Commissioner does not challenge counsel’s right to collect
attorney’s fees, but objects to the hours sought as
unreasonable. [Doc. #42].

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I.

DISCUSSION
A.

Standard of Law

The EAJA provides in relevant part
[A] court shall award to a prevailing party . . .
fees and other expenses . . . incurred by that
party in any civil action . . . including
proceedings for judicial review of agency action,
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.
42 U.S.C. § 2412(d)(1)(A).

Subsection (B) provides that

within thirty days of a final judgment in the action, a party
seeking an award of fees must submit an application for fees,
which shows that the plaintiff is a prevailing party and is
eligible to receive an award, the amount of fees and expenses
sought, including an itemized statement showing the actual time
expended and the rate at which the fees were computed, and an
allegation that the position of the United States was not
substantially justified.

28 U.S.C. § 2412(d)(1)(B).

To be

eligible for an award of fees under the EAJA, an individual’s
net worth must not exceed $2,000,000 at the time the civil
action was filed.

28 U.S.C. § 2412(d)(2)(B)(i).

Plaintiff has complied with these requirements and, in this
case, the Commissioner has not challenged the timeliness of the
petition, plaintiff’s status as a prevailing party, or her
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assertions that the United States was not substantially
justified, and that no special circumstances exist which would
make an award of attorney’s fees unjust.

The Commissioner’s

sole contention is that the amount of the attorney’s fees sought
by plaintiff is unreasonable.
The EAJA provides for an award of “reasonable” fees and
expenses. 28 U.S.C. § 2412(d)(2)(A). The statute further
provides that the “amount of fees awarded under this subsection
shall be based upon prevailing market rates for the kind and
quality of the services furnished,” except that attorney's fees
are capped at $125 per hour unless the court determines that an
increase in the cost of living or other special factor, such as
the limited availability of qualified attorneys to handle the
type of proceeding involved, justifies a higher fee. Id.
Additionally, a district court enjoys broad discretion in
determining what is a reasonable amount of time expended in
pursuing a claim. See Aston v. Sec’y of Health & Human Serv.,
808 F.2d 9, 11 (2d Cir. 1986).
B.

Fee Award
1.

Hourly Rate

Under the 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
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plaintiff seeks cost of living increases resulting in an
adjusted rate of $186.36 for work in 2011, $188.65 for work in
2012, and $189.23 for work in 2013, 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 Court
finds the higher fee is justified. Therefore, the Court will
accept Attorney Pirro’s requested hourly rate of $186.36 for
work in 2011, $188.65 for 2012, and $189.23 for in 2013. Thus,
the only issue left for the Court is the reasonableness of the
number of hours for which plaintiff’s counsel seeks
compensation.
2.

Number of Hours Requested

Plaintiff seeks an award of fees for 48.10 hours, for a
total fee award of $9,054.51. The Commissioner seeks a reduction
in the requested number of hours to “no more than 25”, which
would result in a fee award of nearly half of that requested.
Work Performed in 2011
The Commissioner seeks a reduction of the 9.5 hours spent
in 2011 to prepare the initial pleadings, a three page
complaint, financial affidavit, In Forma Pauperis Application
and associated forms; effect service and other tasks.

Although

not raised by the Commissioner, the Court finds that commingling
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the time entries makes it difficult to discern how much time was
spent on each specific task and prevents a meaningful assessment
of the time spent on clerical tasks. Here the Complaint consists
of three pages and sets forth, in fifteen brief paragraphs, the
administrative proceedings; the third page consists of the
signature line and boilerplate conclusory language. [Doc. #1].
The Financial Affidavit is a form affidavit consisting of three
short paragraphs with the name of the plaintiff hand written in
three sections, which could be prepared by clerical staff and
reviewed by counsel. [Doc. #3-2]. Similarly, the IFP application
is a form provided by the District Court and completed by the
plaintiff, which could be prepared with assistance of clerical
staff with review by counsel. [Doc. #3-1]. The Court finds that
the inclusion of clerical tasks in block entries warrants a
reduction of time. The Court also reduces the request for time
spent to prepare office forms and documents [6/9/11]; review
court docket and e-file request to issue summons [8/3/11];
download documents for service, prepare Summons forms, prepare
instructions to U.S. Marshal, letters to U.S. Marshal, client
and referring attorney. [8/4/11]. Accordingly, the Court reduces
the 9.5 hours sought by 3.0 hours for a total award of 6.5
hours.
Preparation of the Memorandum of Law
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The Commissioner next seeks a reduction in the 25.7 hours
spent to review the administrative record, conduct legal and
medical research, and prepare the memorandum of law, based
largely upon the fact that much of the brief is boilerplate
language, the format of the fact section as “columned style,
rather than a narrative, taking up a greater number of pages”,
and the brief does not raise any novel issues of law or fact.
The Court agrees.

It is noted that plaintiff’s counsel did not

represent Ms. Beck at the administrative level and needed time
to acquaint himself with her medical records and the
administrative record that totaled 751 pages. Plaintiff’s
counsel filed a 41 page memorandum of law, of which the Court
finds at least 25 percent could be considered boilerplate legal
authority for Ms. Beck’s appeal.

Accordingly, the Court finds

that a reduction of ten hours is warranted, given the amount of
material copied from prior filings, the long introduction and
procedural history, as well as string citations to the medical
evidence preceding the argument section in plaintiff’s
memorandum of law.

Plaintiff’s counsel may have spent

considerable time on string citations to medical evidence;
however, the Court does not find the presentation of the
evidence in this manner to be of assistance in reviewing the
record or identifying the relevant facts. Several tasks listed
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are clerical or administrative in nature [6/26/12], and the lack
of detail in the nearly identical time entries makes it
difficult for the Court to determine if the time spent is
reasonable. On this basis, a deduction in the hours sought is
merited.

“Courts throughout the Second Circuit have

consistently found that routine Social Security cases require,
on average, between 20 and 40 hours of attorney time to
prosecute.”

Cobb v. Astrue, No. 3:08CV1130 (MRK), 2009 WL

2940205, at *9 (D. Conn. Sept. 2, 2009) (citing Parsons v.
Comm’r of Soc. Sec., No. 07-cv-1053, 2008 WL 519725, *1
(N.D.N.Y. Dec. 10, 2008) (collecting cases)).
Accordingly, the Court reduces the 25.7 hours sought by ten
hours for counsel to review the administrative record, legal and
medical research, and preparation of the memorandum of law to a
total of 15.7 hours.
EAJA Application
Finally, plaintiff seeks an award of 3.8 hours for the
preparation of the motion for EAJA Fees, supporting memorandum
and affidavit, and itemization of time, among other tasks.

The

Court finds 3.8 hours for the preparation of the motion,
memorandum, and supporting documents excessive.

In fact, the

motion, memorandum, and affidavit are nearly identical to those
filed by counsel in a separate social security case before the
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Court.

See Mot. for Costs and Fees, Barnes v. Astrue, Civ. No.

3:11CV01780(HBF), Doc. #23.

The Court finds that a reduction of

2.5 hours is warranted given the amount of material copied from
previous filings, and for the “[i]temization of [t]ime”.

The

Court notes that time records are to be kept contemporaneously
with the work performed, and that counsel’s itemization of time
appears to have been prepared after the fact.
Accordingly, the Court reduces the 3.8 hours sought by 2.5
hours for counsel to prepare the motion for EAJA Fees,
supporting memorandum and affidavit, and itemization of time to
a total of 1.3 compensable hours.
The Court has carefully reviewed plaintiff’s itemization of
time filed in support of his motion for attorney’s fees and
finds all of the remaining time entries to be reasonable.
II.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Attorney’s
Fees [Doc. #38] is GRANTED in part and DENIED in part.
Attorney’s fees are awarded in the amount of $6,135.86,
representing 32.6 hours of work.1

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Itemization of fees awarded:

YEAR
2011
2012
2013

RATE AWARDED
$186.36
$188.65
$189.23
TOTAL:

HOURS AWARDED
6.5
24.8
1.3
32.6

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TOTAL
$1,211.34
$4,678.52
$246.00
$6,135.86

This is not a recommended ruling.

This is a ruling on

attorney’s fees and costs which is reviewable pursuant to the
"clearly erroneous" statutory standard of review.

28 U.S.C. '636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 25th day of March 2013.

____________/s/__________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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