Peterson v. Kijakazi

Filing 22

ORDER granting 21 Motion for Attorney's Fees pursuant to the Equal Access to Justice Act in the amount of $7,570.78 for the reasons stated in the attached ruling and order. Signed by Judge Vanessa L. Bryant on 5/19/2023. (Burlingham, Corinne)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GARY PETERSON
Plaintiff,
v.
KILOLO KIJAKAZI,
Commissioner of Social Security,
Defendant.

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No. 3:22-cv-26
May 19, 2023

RULING AND ORDER ON MOTION FOR ATTORNEY’S FEES [DKT. 26]
The Plaintiff Gary Peterson filed this social security action in January 2022
after having been denied disability insurance benefits. (ECF No. 1.) The Plaintiff
filed a Motion for Order Reversing the Decision of the Commissioner, (ECF No. 15),
and the Defendant—the Acting Commissioner of Social Security, currently Kilolo
Kijakazi—filed a Motion for an Order Affirming, (ECF No. 17.) The Court granted
the Plaintiff’s motion finding that the Administrative Law Judge committed
reversable error by failing to develop the record and substituted his own nonexpert
medical opinion as to the Plaintiff’s residual functional capacity for that of
physicians. (ECF No. 19.) The case was reversed and remanded for additional
proceedings consistent with the decision. (Id.)
Before the Court is the Plaintiff’s Motion for Attorney’s Fees pursuant to the
Equal Access to Justice Act (“EAJA”), 21 U.S.C. § 2412. (ECF No. 21.) The Plaintiff
seeks an award of attorney’s fees of $7,570.78. (Id.) The Plaintiff’s motion was filed
on April 7, 2023. To date, the Commissioner has not responded, which is highly

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unusual in this Court’s experience.

Typically, the Commissioner will either

stipulate to the fees proposed by the Plaintiff or file an objection. As neither action
was taken, the Court reviews the Plaintiff’s request based solely on the arguments
raised by the Plaintiff and the underlying record.
Under the EAJA, a prevailing party in a civil action against the United States
is entitled to attorneys’ fees absent a showing by the Government that its position
in the underlying litigation “was substantially justified.”

§ 2412(d)(1)(A).

A

prevailing party seeking an award of fees “shall, within thirty days of final judgment
in the action,” file a fee application that includes (1) a showing that the applicant is
a prevailing party; (2) a showing that the applicant is eligible to receive an award .
. . (3) a statement of the amount sought together with an itemized account of time
expended and rates charged . . .” and (4) an allegation that “the position of the
United States was not substantially justified.” Scarborough v. Principi, 541 U.S.
401, 414 (2004) (citing to § 2412(d)(1)(B)).
Here, the Plaintiff’s motion was timely filed. The motion was filed within
thirty days of the end of the appeal period. 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). Thus, in this case, the 30-day EAJA clock began to run

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on March 21, 2023, 60 days after judgment for plaintiff entered and no appeal was
filed. The Plaintiff’s motion was filed on April 7, 2023, within 30 days after March
21, 2023. (ECF No. 21.)
The Court is to assess whether the Plaintiff has satisfied the other
requirements of § 2412(d)(1)(B). Here, the Plaintiff has shown that he is a prevailing
party (as evidenced by the Court’s decision granting the motion to reverse and
remand), he is eligible for a fees award, he has provided an itemized statement of
time spent at a specific rate, and he alleges the United States’ position was not
substantially justified. The United States did not respond to the motion, let alone
argue that its position was substantially justified. The Court does not find on this
record that the United State’s position was substantially justified. Thus, the Court
finds the Plaintiff has complied with the statutory requirements under §§
2412(d)(1)(A) and 2412(d)(1)(B).
Next, the Court is to assess whether the fees requested are reasonable.
First, as to the amount of time billed, counsel reports devoting 33.4 hours to this
action. This amount of time is reasonable considering the voluminous record and
with the multiple legal issues raised in the motion to reverse. Second, as to the
rate, counsel charged a rate of $226.67 per hour. The EAJA caps attorneys’ fees at
$125 per hour “unless the court determines that an increase in the cost of living or
a special factor . . . justifies a higher fee.” § 2412(d)(2)(A). The $125 per hour rate
was effective March 1996. PL 104-121, 110 Stat. 847, § 231 (1996). Courts adjust
the $125 rate to reflect the change in cost-of-living using the Consumer Price Index
(CPI), applying the cost-of-living adjustment for each year in which hours were

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billed. Caplash v. Nielsen, 294 F. Supp. 3d 123, 136 (W.D.N.Y. 2018). Based on the
CPI Inflation Calculator provided by the United States Bureau of Statistics, $125 in
March 1996 has the same buying power as approximately $234.95 1 in 2022 and
$241.89 for the first four months of 2023. The attorney’s fees requested are for a
rate lower than the statutory adjusted cap.

The Court finds the rate billed

reasonable in part because it is lower than the cost-of-living-adjusted statutory cap
and the quality/expertise demonstrated by counsel in the pleadings.

Further

support that the fees are reasonable is in the fact that the total amount sought,
$7,570.78 is on par with other awards issued in similar cases by this Court.
Coleman v. Saul, 20-cv-1588 ($6,292.48); Selmecki v. Colvin, 16-cv-1775 ($7,390.50);
Bonney v. Saul, 20-cv-1136 ($7,500.00); Willey v. Saul, 19-cv-1050 ($9,891.00);
Kumar v. Colvin, 16-cv-1196 ($11,460.93). Thus, the Court finds that the attorney’s
fees requested are reasonable.
Therefore, the Court grants the Plaintiff’s motion for attorney’s fees.

IT IS SO ORDERED
_____/s/_________________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: May 19, 2023

Calculated based on the average rate throughout 2022. CPI Inflation Calculator,
U.S. Bureau of Statistics, available at
https://www.bls.gov/data/inflation_calculator.htm (last visited May 17, 2023.)
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