Barnes v. Astrue
RULING granting in part and denying in part 23 Motion for Cost and Fees; granting in part and denying in part 28 Motion for Cost and Fees. Attorney's fees are awarded in the amount of $6,069.66, representing 32.3 hours of work. Ruling attached. Signed by Judge Holly B. Fitzsimmons on 3/26/13. (Esposito, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
COMMISSIONER OF SOCIAL
CIV. NO. 3:11CV01780 (HBF)
RULING ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
On October 17, 2012, counsel for Shequiva Barnes moved this
Court under the Equal Access to Justice Act (“EAJA”), 24 U.S.C.
§2412(d), to authorize an award of attorney’s fees in the amount
of $10,019.90. 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 66 hours of work
performed in 2011 and 2012, at an hourly rate of $186.36 for
2011 and $188.27 for 2012. [Doc. #23].
The Commissioner does
not challenge counsel’s right to collect attorney’s fees, but
objects to the hours sought as excessive.
Plaintiff then filed
a reply memorandum [doc. #27] and a Second Motion for Attorney’s
Fees [doc. #28], seeking reimbursement for an additional
$2,391.03 in fees for the time spent filing a reply memorandum
and a second motion for fees.
Defendant filed an opposition to
the second motion. [Doc. #29]. This ruling covers both
attorney’s fees motions.
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).1
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
On July 20, 2012, the Court granted on consent the
Commissioner’s Motion for Entry of Judgment under Sentence Four
of 42 U.S.C. §405(g).
28 U.S.C. §2412(d)(1)(B).
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
assertion that the United States was not substantially
justified, and that no special circumstances exist which would
make an award of attorney’s fees unjust.
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,
F.2d 9, 11 (2d Cir. 1986).
The parties agree to an hourly rate of $186.36 for work
performed in 2011 and $188.27 for work performed in 2012.
Court will accept plaintiff’s counsel’s certification that these
rates accurately reflect the increase in the cost of living
based on the Consumer Price Index. [Doc. #23-2 at 6-7; Doc. #26
Thus, the only issue for the Court is the reasonableness
of the number of hours for which plaintiff’s counsel seeks
Number of Hours Requested
Plaintiff’s first motion seeks an award of fees for 53.30
hours, for a total fee award of $10,019.90.2 Defendant seeks a
reduction in the requested number of hours by 15 hours, which
would result in a fee award of $5,883.30.
Preparation of Initial Pleadings
Defendant seeks a 2.5 hour reduction of the 6.5 hours spent
on October 4, 14, 18, 31, and November 28 and 30, 2011, to
prepare the initial pleadings, a three page complaint, financial
affidavit, In Forma Pauperis Application and associated forms;
effect service and other tasks. Defendant argues that the
Plaintiff requests a total award in the amount of $12,410.93
for 66 hours of attorney work.
commingling of 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. The
Court agrees. Here the Complaint consists of three pages and
sets forth, in sixteen brief paragraphs, the administrative
proceedings; the third page consists of the signature line and
boilerplate conclusory language. [Doc. #1].
Affidavit is a form affidavit consisting of three short
paragraphs with the name of the plaintiff hand written in three
sections and could be prepared by clerical staff and reviewed by
counsel. [Doc. #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. #2]. Defendant’s objection to 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 [10/4/11]; complete
forms [10/14/11]; prepare Financial Statement [10/18/13]; review
court docket and e-file request to issue summons [11/28/13];
download documents for service, prepare Summons forms, prepare
instructions to U.S. Marshal, letters to U.S. Marshal, client
and referring attorney. [11/30/12].
Accordingly, the Court reduces the 6.5 hours sought by
2.5 hours for preparation of initial pleadings for a total award
of 4.0 hours.
Preparation of the Memorandum of Law
Defendant next seeks a 10 hour reduction in the 36.3 hours
spent between April 25 and May 8, 2012, to review the
administrative record, do legal and medical research and
preparethe memorandum of law, based largely upon the fact that
much of the argument section of plaintiff’s memorandum is
“boilerplate” or duplicative of other memoranda plaintiff’s
counsel has filed in other cases. The Court agrees.
It is noted
that plaintiff’s counsel did not represent Ms. Barnes at the
administrative level and needed time to acquaint himself with
her medical records and the administrative record that totaled
650 pages. Moreover, due to her disabilities, plaintiff was
unable to meaningfully assist counsel in pursuing her claims.
Plaintiff’s counsel filed a 38 page memorandum of law, of which
he concedes 25% could be considered boilerplate legal authority
for Ms. Barnes’ appeal. [Doc. #27 at 6].
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. Several tasks listed are
clerical or administrative in nature [5/08/12] 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.
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 36.3 hours sought by 10
hours for counsel to review the administrative record, do legal
and medical research and prepare the memorandum of law, for a
compensable total of 26.3 hours.
The Court has carefully reviewed plaintiff’s itemization of
time filed in support of his first motion for attorney’s fees
and finds all of the remaining time entries to be reasonable.
Finally, defendant challenges the 3.5 hours sought to
prepare the first EAJA application and 12.7 additional hours
sought in the Second Motion for Attorney’s Fees [Doc. #28] for
time spent reviewing defendant’s partial opposition to the fee
request, preparing the reply brief and the second motion for
Defendant argues that one hour is a reasonable award to
prepare the initial EAJA filing and opposes an additional 12.7
hours sought in the Second Motion for EAJA fees, arguing that
17.2 hours is unreasonable.
The Court agrees.
Plaintiff is awarded 2 hours for the preparation of the two
Motions for EAJA attorneys’ fees, which is one hour for each of
While plaintiff’s counsel was certainly entitled
to file a reply brief “strictly confined to a discussion of
matters raised by the responsive brief,” D. Conn. L. Civ. R.
7(d), there was no need to file a second motion for fees, as
plaintiff’s counsel would have simply included in the reply
brief a request for an additional award of fees covering time
spent on the reply and attached a brief affidavit and
itemization of time.
For the reasons stated, plaintiff’s Motion for Attorney’s
Fees [Doc. #23] and Second Motion for Attorney’s Fees [Doc. #28]
are GRANTED in part and DENIED in part. Attorney’s fees are
awarded in the amount of $6,069.66, representing 32.3 hours of
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.
it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 26th day of March 2013.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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