Klecha v. Saul

Filing 26

ORDER. For the reasons set forth in the attached Order, the Court APPROVES and SO ORDERS the parties' 25 Joint Stipulation for Attorney Fees under the Equal Access to Justice Act, for the stipulated amount of $9,700. Further, in accordance with the parties' 25 Joint Stipulation, plaintiff shall be awarded costs under 28 U.S.C. §1920 in the amount of $400.00 to be paid by the Judgment Fund. Signed by Judge Sarah A. L. Merriam on 9/7/2021. (Katz, S.)

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 1 of 9

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
BOGDAN K.
:
:
v.
:
:
KILOLO KIJAKAZI,
:
ACTING COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION
:
:
------------------------------x

Civ. No. 3:20CV01341(SALM)

September 7, 2021

ORDER APPROVING STIPULATION FOR ALLOWANCE OF FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT [Doc. #25]
Plaintiff Bogdan K. (“plaintiff”) filed an application for
Disability Insurance Benefits on September 21, 2017, alleging
disability beginning February 1, 2017. See Certified Transcript
of the Administrative Record, Doc. #13, compiled on January 4,
2021, (hereinafter “Tr.”) at 191-92. Plaintiff’s application was
denied initially on April 18, 2018, see Tr. 117-26, and upon
reconsideration on August 2, 2018. See Tr. 129-31.
On March 20, 2019, plaintiff, represented by Attorney Joyce
Samuel, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Louis Bonsangue. See generally
Tr. 37-70, Tr. 75-78. On April 15, 2019, the ALJ issued an
unfavorable decision. See Tr. 14-30. On July 16, 2020, the
Appeals Council denied plaintiff’s request for review of the
ALJ’s decision, thereby making the ALJ’s April 15, 2019,
decision the final decision of the Commissioner. See Tr. 1-6.
1

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 2 of 9

Plaintiff, represented by Attorney Dennis G. Ciccarillo, timely
appealed that decision to this Court on September 9, 2020. [Doc.
#1]. The parties consented to the jurisdiction of the
undersigned on November 9, 2020. See Doc. #9.
On January 5, 2021, the Commissioner (hereinafter the
“defendant” or the “Commissioner”) filed the official
transcript. [Doc. #13]. On April 12, 2021, after having received
two extensions of time, plaintiff filed a Motion to Reverse the
Decision of the Commissioner. See Docs. #14, #15, #16, #17, #18.
On June 9, 2021, defendant filed a Motion to Affirm the Decision
of the Commissioner [Doc. #21], to which plaintiff filed a
reply. [Doc. #22]. On August 9, 2021, the Court granted
plaintiff’s motion and remanded this matter for further
administrative proceedings. See Doc. #23. Judgment entered for
plaintiff on that same date. [Doc. #24].
On August 25, 2021, the parties filed a Stipulation for
Allowance of Fees under the Equal Access to Justice Act (“EAJA”)
agreeing that the Commissioner should pay fees in the amount of
$9,700 (hereinafter the “Joint Stipulation”). [Doc. #25]. In the
Joint Stipulation it is also “agreed that Plaintiff” will be
“awarded costs under 28 U.S.C. §1920 in the amount of $400.00 to
be paid by the Judgment Fund.” Id. at 1 (footnote omitted).
Attached to the Joint Stipulation is an “Interim Statement of
Professional Services Rendered” detailing the number of hours
2

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 3 of 9

spent litigating the case on behalf of plaintiff (hereinafter
the “Statement of Services”). Doc. #25-1 at 3-4.
Although the parties have reached an agreement as to the
appropriate award of fees and costs in this matter, the Court is
obligated to review the Statement of Services and determine
whether the proposed award is reasonable. “[T]he determination
of a reasonable fee under the EAJA is for the court rather than
the parties by way of stipulation.” Pribek v. Sec’y, Dep’t of
Health & Human Servs., 717 F. Supp. 73, 75 (W.D.N.Y. 1989)
(citation and internal quotation marks omitted); see also Rogers
v. Colvin, No. 4:13CV00945(TMC), 2014 WL 630907, at *1 (D.S.C.
Feb. 18, 2014); Design & Prod., Inc. v. United States, 21 Cl.
Ct. 145, 152 (1990) (holding that under the EAJA, “it is the
court’s responsibility to independently assess the
appropriateness and measure of attorney’s fees to be awarded in
a particular case, whether or not an amount is offered as
representing the agreement of the parties in the form of a
proposed stipulation”). The Court therefore has reviewed the
itemization of hours incurred by plaintiff’s counsel to
determine whether the stipulated fee amount is reasonable.
For the reasons set forth herein, the Court APPROVES and SO
ORDERS the parties’ Joint stipulation [Doc. #25], for the
stipulated amount of $9,700. Further, in accordance with the
parties’ Joint Stipulation, plaintiff shall be awarded costs
3

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 4 of 9

under 28 U.S.C. §1920 in the amount of $400.00 to be paid by the
Judgment Fund.
DISCUSSION
A party who prevails in a civil action against the United
States may seek an award of fees and costs under the EAJA, 28
U.S.C. §2412, the purpose of which is “to eliminate for the
average person the financial disincentive to challenging
unreasonable government actions.” Commissioner, I.N.S. v. Jean,
496 U.S. 154, 163 (1990) (citing Sullivan v. Hudson, 490 U.S.
877, 883 (1989)). In order for an award of attorney’s fees to
enter, this Court must find (1) that the plaintiff is a
prevailing party, (2) that the Commissioner’s position was
without substantial justification, (3) that no special
circumstances exist that would make an award unjust, and (4)
that the fee petition was filed within thirty days of final
judgment. See 28 U.S.C. §2412(d)(1)(B).
In the Statement of Services attached to the Joint
Stipulation, plaintiff’s attorney claims fees for 55.5 hours of
work at a rate of $208.94 per hour. See Doc. #25-1 at 1, 3-4.
The parties have reached an agreement under which defendant
would pay $9,700 in fees, which represents approximately 46.4
hours of attorney time. It is plaintiff’s burden to establish
entitlement to a fee award, and the Court has the discretion to
determine what fee is “reasonable.” Hensley v. Eckerhart, 461
4

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 5 of 9

U.S. 424, 433, 437 (1983) (interpreting 42 U.S.C. §1988, which
allows a “prevailing party” to recover “a reasonable attorney’s
fee as part of the costs”).1 This Court has a duty to review
plaintiff’s itemized Statement of Services to determine the
reasonableness of the hours requested and to exclude hours “that
are excessive, redundant, or otherwise unnecessary[.]” Id. at
434. “Determining a ‘reasonable attorney’s fee’ is a matter that
is committed to the sound discretion of a trial judge.” J.O. v.
Astrue, No. 3:11CV01768(DFM), 2014 WL 1031666, at *1 (D. Conn.
Mar. 14, 2014) (quoting Perdue v. Kenny A., 559 U.S. 542, 558
(2010)).
Here, the Court finds that plaintiff has satisfied the
requirements of 28 U.S.C. §2412(d)(1)(B), and that an award of
fees may enter. Specifically, the Court finds that: (1)
plaintiff is a prevailing party in light of the Court ordering a
remand of this matter for further administrative proceedings;
(2) the Commissioner’s position was without substantial
justification; (3) on the current record, no special
circumstances exist that would make an award unjust; and (4) the

The “standards set forth in [Hensley] are generally applicable
in all cases in which Congress has authorized an award of fees
to a ‘prevailing party.’” Hensley, 461 U.S. at 433 n.7.
1

5

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 6 of 9

fee petition was timely filed.2 See 28 U.S.C. §2412(d)(1)(B). The
Court next turns to the reasonableness of the fees sought.
In this case, plaintiff’s counsel seeks payment for 46.4
hours of work, reduced from the 55.5 hours actually incurred.
See generally Docs. #25, #25-1. The administrative transcript in
this case was comprised of a substantial 1,334 pages and
plaintiff’s counsel submitted a thorough brief. See generally
Doc. #18-1. Plaintiff’s counsel also prepared a well-reasoned
reply memorandum. See Doc. #22. Additionally, counsel did not
represent plaintiff during the administrative proceedings. The
Court finds the attorney time reasonable for the work claimed,
including: review of the administrative transcript [Doc. #13];
preparation of the motion to reverse and supporting memorandum
[Docs. #18, #18-1]; preparation of the statement of material

Plaintiff’s motion is timely as it was filed within thirty days
after the time to appeal the final judgment had expired. See
Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) (“[A] ‘final
judgment’ for purposes of 28 U.S.C. §2412(d)(1)(B) means a
judgment rendered by a court that terminates the civil action
for which EAJA fees may be received. The 30–day EAJA clock
begins to run after the time to appeal that ‘final judgment’ has
expired.”). “The notice of appeal may be filed by any party
within 60 days after entry of the judgment” in cases where, as
here, one of the parties is “a United States officer or employee
sued in an official capacity[.]” Fed. R. App. P. 4(a)(1)(B),
(B)(iii). In this case, the 30-day EAJA clock would begin to run
on October 8, 2021, 60 days after judgment for plaintiff
entered. The parties filed the Joint Stipulation on August 25,
2021, well before the expiration of the filing deadline. See
Doc. #25.
2

6

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 7 of 9

facts [Doc. #18-2]; and preparation of the reply. [Doc. #22].
Cf. Rodriguez v. Astrue, No. 08CV00154(JCH)(HBF), 2009 WL
6319262, at *3 (D. Conn. Sept. 3, 2009) (“Relevant factors  to
weigh include the size of the administrative record, the
complexity of the factual and legal issues involved, counsel’s
experience, and whether counsel represented the claimant during
the administrative proceedings.” (quotation marks and multiple
citations omitted)); see also Lechner v. Barnhart, 330 F. Supp.
2d 1005, 1012 (E.D. Wis. 2004); cf. Barbour v. Colvin, 993 F.
Supp. 2d 284, 291 (E.D.N.Y. 2014).
“Courts 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.” Poulin v. Astrue, No. 3:10CV1930(JBA)(JGM), 2012 WL
264579, at *3 (D. Conn. Jan. 27, 2012)(citations & internal
quotation marks omitted); Cobb v. Astrue, No.
3:08CV1130(MRK)(WIG), 2009 WL 2940205, at *3 (D. Conn. Sept. 2,
2009). “However, in cases where the specific circumstances
warrant it, courts do not hesitate to award fees in excess of
twenty to forty hours.” Butler v. Colvin, No.
3:13CV00607(CSH)(JGM), 2015 WL 1954645, at *2 (D. Conn. Apr. 29,
2015) (citation and quotation marks omitted). Although 46.4
hours just exceeds the presumptively reasonable time for
prosecuting a Social Security appeal, the agreed upon hours
7

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 8 of 9

sought are reasonable given the length of the record and the
fact that plaintiff’s counsel did not represent plaintiff during
the administrative proceedings. See, e.g., Yulfo-Reyes v.
Berryhill, No. 3:17CV02015(SALM), 2019 WL 582481, at *4-5 (D.
Conn. Feb. 13, 2019) (awarding fees for 60 hours of work where,
inter alia, the record at issue was over 2,000 pages, and
plaintiff’s pro bono counsel did not have experience in Social
Security law and did not represent plaintiff during the
administrative proceedings). Accordingly, the Court finds that
the stipulated time is reasonable, particularly in light of the
parties’ agreement, which adds weight to the claim that the fee
award claimed is reasonable. Therefore, an award of $9,700 in
fees is appropriate, and the Court APPROVES and SO ORDERS the
parties’ Joint Stipulation [Doc. #25], for the stipulated amount
of $9,700.
In addition, upon filing the complaint in this matter,
plaintiff paid a filing fee in the amount of $400.00. See Doc.
#1. Thus, in accordance with the parties’ stipulation [Doc.
#25], plaintiff shall be awarded costs under 28 U.S.C. §1920 in
the amount of $400.00 to be paid by the Judgment Fund. See,
e.g., Christopher M. V. v. Comm’r of Soc. Sec., No.
1:19CV01500(JJM), 2021 WL 1746432, at *1 (W.D.N.Y. May 4, 2021)
(The court approved an EAJA stipulation providing for payment of
the filing fee pursuant to 28 U.S.C. §1920 where the docket
8

Case 3:20-cv-01341-SALM Document 26 Filed 09/07/21 Page 9 of 9

“reflect[ed] that plaintiff paid a filing fee in the amount of
$400.00 upon filing the complaint.”).
SO ORDERED at New Haven, Connecticut this 7th day of
September, 2021
/s/
.
Hon. Sarah A. L. Merriam
United States Magistrate Judge

9