PATILLO v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

LETTER OPINION re 7 MOTION for Attorney Fees (EAJA) filed by MARCIA PATILLO. Signed by Judge William J. Martini on 2/7/08. (gh, )

P A T I L L O v. COMMISSIONER OF SOCIAL SECURITY

D o c . 10

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M A R T I N LU T H E R KIN G JR . FED E R A L BLD G . & U . S . C O U R T H O U S E 5 0 W A L N U T ST R E E T , P.O . BO X 419 N E W A R K , N J 07101-0419

[phone]

WILLIAM J. MARTINI JUDGE

L E T T E R OPINION F e b ru a ry 7, 2008 J a m e s Langton L a n g to n & Alter, Esqs. 2 0 9 6 St. Georges Avenue P .O . Box 1798 R a h w a y, NJ 07065 (A tto rn e y for Plaintiff) Jo h n M. Kelly S p e c ia l Assistant United States Attorney c /o Social Security Administration 2 6 Federal Plaza R o o m 3904 N e w York, NY 10278 (A tto r n e y for Defendant) RE: P a tillo v. Commissioner of Social Security C iv . No. 06-5030 (WJM)

D e a r Counsel: P la in tif f Marcia Patillo ("Plaintiff") brings this motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA") § 204(a), 28 U.S.C. § 2412(d) (2000). Plaintiff seeks fees as the prevailing party in her appeal of the Commissioner's denial of s o c ia l security benefits. For the following reasons, Plaintiff's motion is GRANTED IN P A R T and DENIED IN PART. F a c ts and Discussion P la in tif f filed an application for Social Security Income benefits on March 17,

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2 0 0 0 alleging disability as of January 17, 1996. This case has a long history of appeals a n d will not be repeated here. It is sufficient to note that on September 17, 2007, the d en ial of Plaintiff's benefits was remanded by the consent of the parties for a third h e a rin g before the administrative law judge. Plaintiff's motion for an award of attorney's fees for 29.75 hours of legal services a n d costs pursuant to 28 U.S.C. § 2412(d) for the September 17, 2007 remand is now b e f o re the Court. Defendant does not oppose Plaintiff's status as the prevailing party or a ss e rt that the government's position was justified. Defendant also does not challenge the f e e rate. Rather, Defendant argues that EAJA fees should be denied, or at least reduced, d u e to the failure of Plaintiff's counsel to follow L. Civ. R. 9.1. In reply, Plaintiff's c o u n se l argues essentially that Rule 9.1 is superfluous, and that Plaintiff's counsel is e n title d to fees because the submitted brief was the proximate cause of the C o m m is s io n e r' s consent to remand. Local Rule 9.1 directs plaintiffs to serve the Commissioner with a statement s e ttin g forth her primary arguments as to why she is entitled to relief. The purpose of the ru le is to "encourage early and amicable resolution of Social Security matters." L. Civ. R. 9 .1 . The defendants are given thirty days to agree with the relief and proceed in a c c o rd a n c e with the local rules governing settlement. Id. In this case, Plaintiff failed to submit a Rule 9.1 statement, but rather expended 2 2 .5 hours drafting and filing a near thirty-page brief. (Pl.'s Schedule of Services.) If P lain tiff 's counsel had provided a Rule 9.1 statement to the Commissioner, Plaintiff's c o u n s e l may have been spared the 22.5 hours spent preparing Plaintiff's brief. The claims o f Plaintiff's counsel that the Commissioner would not have agreed to remand based upon th e Rule 9.1 statement is pure speculation. Furthermore, this Court cannot conclude that th e 22.5 hours spent on Plaintiff's brief by her counsel was necessary and reasonable s in c e Plaintiff's counsel did not duly file his required statement of primary contentions a n d arguments. Although the Court finds that Plaintiff is the prevailing party and that the C o m m is s io n e r has not substantially justified its litigating position, the Court finds that P la in tif f has failed to show that her request for attorney's fees is reasonable and justified. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Plaintiff's failure to su b m it a Rule 9.1 statement as required under the local rules was unjustified. The very ra tio n a le for Rule 9.1 is to encourage early settlement and avoid unnecessary delay and c o sts . The unilateral decision of Plaintiff's counsel to disregard this procedural re q u ire m e n t may have unnecessarily and unreasonably protracted the resolution of the c a se and gained no appreciable advantage for Plaintiff. Thus, the Court finds that an 2

aw ard of attorney's fees for the entire 22.5 hours spent drafting and filing Plaintiff's p o te n tia lly unnecessary brief would be unreasonable in light of Plaintiff's failure to abide b y the local rules. The Court, however, does recognize that Plaintiff's counsel would have expended so m e amount of time in drafting the required Rule 9.1 statement. In light of the facts in th is case and the Court's experience in assessing appropriate EAJA fees, it would have b e e n reasonable for Plaintiff's counsel to spend 7.2 hours in setting forth the statement. As the remaining 7.25 hours spent by Plaintiff's counsel would have been required e v e n if Plaintiff's counsel had followed the relevant procedural rules, the Court finds that s u c h time was reasonable and appropriate. Thus, the Court will award attorney's fees for a total of 14.45 hours. Similarly, the Court finds that costs in the amount of $350.00 for c o u rt filing fees were necessary and reasonable. Conclusion F o r the foregoing reasons, Plaintiff's motion is GRANTED IN PART and D E N IE D IN PART, and this Court grants Plaintiff a total fee award of $2680.06 p u rs u a n t to EAJA. An appropriate Order accompanies this Letter Opinion.

s/W illiam J. Martini William J. Martini, U.S.D.J.

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