AMPARO v. COMMISSIONER OF SOCIAL SECURITY

Filing 35

OPINION AND ORDER awarding Plaintiff's counsel attorneys' fees. Signed by Judge Kevin McNulty on 9/17/14. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GABRIEL AMPARO,

Civ. No. 2:12-cv-6403 (KM)

Plaintiff,
OPINION
(Not for publication)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY U.S.D.J.:
This matter comes before the Court on the application of the plaintiff’s
attorney, James Langton, Esq., of Langton & Alter,’ to be awarded attorneys’
fees in the amount of $8,790. Langton’s firm represented the plaintiff, Gabriel
Amparo, on appeal under 42 U.S.C. § 405(g) from the Commissioner’s denial of
Social Security Disability Insurance benefits (“SSDI”). Plaintiff prevailed, and
Langton seeks reimbursement of his fees from the Social Security
Administration, pursuant to the fee-shifting provisions of the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412. The Commissioner concedes that
Langton is entitled to fees, but disputes the amount claimed. I write this short
unpublished opinion for the benefit of the parties, who are familiar with the
facts and proceedings in this case.
As to counsel’s entitlement to a fee award, there is little doubt. The
Commissioner does not dispute that Amparo was the “prevailing party” here,
and does not argue that the position of the United States was “substantially
justified.” See 28 U.S.C. § 241 1(d)(1)(B). That concession is sound. In an
opinion and order dated July 31, 2014, I reversed the final decision of the
Agency, and remanded the matter for further proceedings. The basis of my

“Langton,” as used herein, refers interchangeably to the attorney and the firm.
Some of the work was actually performed by Mr. Alter.
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decision was a finding, under a government-friendly standard of review, that
the AU’s decision was not supported by substantial evidence. (Docket no. 30)
The remaining issue, then, is whether the dollar amount of Langton’s
claim for fees is within the bounds of reasonableness.
At a minimum, an attorney seeking fees must “submit evidence
supporting the hours worked and rates claimed.” See Rode v. Dellarciprete, 892
F.2d 1177, 1183 (3d Cir. 1990). The documentation of hours and rates is not at
issue here; Mr. Langton has submitted copies of the time records of his firm,
and the government does not dispute their genuineness. (Docket no. 32-5)
Likewise, the government does not dispute counsel’s calculation of the adjusted
EAJA rate at $183.90 per hour. (Docket no. 32-2 at ¶4)
The party seeking fees also has the burden of showing that the dollar
amount of the request is reasonable. Id.; see generally Hensley v. Eckerhart,
461 U.S. 424, 433, 437 (1983) (court has discretion to deny award of fees that
are excessive or unreasonable). In evaluating an EAJA fee application, a court
is to apply “traditional equitable principles.” Meyler v. Commissioner of Social
Security, 2008 WL 2704831 at *2 (D.N.J. July 7, 2008) (citing Taylor v. United
States, 815 F.2d 249, 252 (3d Cir. 1987)). And the statute itself provides that
“[t]he court, in its discretion, may reduce the amount to be awarded pursuant
to this subsection, or deny an award, to the extent that the prevailing party
during the course of the proceedings engaged in conduct which unduly and
unreasonably protracted the final resolution of the matter in controversy.” 28
U.S.C. § 2412(d)(1)(C).
The party opposing a fee request has the burden to submit objections
that are specific and well-supported. See United States v. Eleven Vehicles, 200
F.3d 203, 211-12 (3d Cir. 2000); Bell v. United Princeton Properties, 884 F.2d
713, 715 (3d Cir. 1989). Here, the government makes two contentions: (1) that
the Court should disallow fees for time spent litigating the timeliness of the
appeal; and (2) that the hours spent in preparing plaintiff’s brief are excessive
because the brief consists largely of boilerplate from briefs previously filed by
the same firm.
1. The motion to dismiss the appeal as untimely
I addressed the timeliness of this appeal in an opinion filed December 19,
2013. (Docket no. 17) The deadline to appeal fell on October 6, 2012; this

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action was filed approximately five days late, on October 11, 2012. The reason,
according to Mr. Amparo, was that he had visited a Social Security district
office on September 25, 2012, and believed that a claims representative there
had granted him a 30-day extension. Amparo was not represented by counsel
at the time. Only thereafter, on approximately October 4, 2012, did Mr. Amparo
consult with counsel (i.e., Mr. Langton’s firm). The complaint, as filed by
counsel on October 11, 2012, recited that an extension had been given. No
such extension could be valid, however; such an extension must be obtained in
writing from the Appeals Council. See 20 C.F.R. § 422.2 10(c); id. at § 405.505;
id. at § 405.20.
The Commissioner moved to dismiss the appeal as untimely. (Docket no.
12) Amparo’s briefing in response consisted of a 2-page letter from his attorney,
citing no law but relating the facts surrounding Amparo’s visit to the Social
Security Office on September 25, 2012. (Docket no. 13) Submitted with the
letter was a short, eight-paragraph affidavit of Mr. Amparo relating the same
facts. Two exhibits were attached. Id.
I denied the motion to dismiss without oral argument. My opinion
provided that the deadline would be equitably tolled for five days because the
then-pro se plaintiff had taken actions that he mistakenly, but not
unreasonably, believed were sufficient to extend the deadline. (Docket no. 17)
Plaintiff’s counsel billed 11.65 hours in connection with the motion to
dismiss the appeal as untimely. The Commissioner replies, in essence, that all
of this motion practice would not have been necessary but for counsel’s failure
to file the appeal on time. Even if Amparo himself did not know that a claims
representative cannot grant an extension, the government contends,
experienced plaintiffs’ counsel should be charged with such knowledge.
When Amparo first consulted with counsel, on October 4, 2012, the
deadline had about two days to run. Mr. Langton argues with some force that it
would have been impossible to obtain and review the administrative record and
file a proper complaint within that time. Perhaps counsel, acting with ideal
alacrity, could have sought and obtained an extension in writing from the
Appeals Council. That would depend, I suppose, on how quickly that body
responds to such applications, but there is no record that counsel tried. At any
rate, when Amparo first retained counsel, he had already dug himself into the
hole that counsel, one way or the other, would have to pull him out of. And
there is certainly enough fault to go around. On September 25, 2012, the SSA
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was seemingly aware that Amparo was visiting its office for the very purpose of
ensuring that he did not miss the deadline. That he did miss the deadline can
be traced, at least in part, to the Administration’s failure to advise him of the
proper procedures. Applying traditional equitable principles, I see no sufficient
basis to treat plaintiff’s response to the motion to dismiss as superfluous or
unwarranted.
That said, some of the time appears excessive. On July 26, 2013, counsel
billed 2.5 hours to “Research, prepare and submit Memorandum in opposition
to Motion to Dismiss.” As noted above, that Memorandum is a 2-page letter.
And that letter largely repeats the facts contained in the accompanying
Affidavit (preparation of that Affidavit is billed separately). On August 8, 2013,
counsel billed 2.0 hours to “Receive and review Defendant Reply and
Declaration.” That government Reply consisted of a 6-page brief, which added
very little that was new, but reiterated the points in the main brief. The
Declaration, consisting of nine short paragraphs, is 1 ‘/2 pages long, with a
short exhibit attached. This combined submission would not have taken long
to review; moreover, as a Reply, it called for no response from plaintiff. On
December 19, 2013, counsel billed 1.75 hours to reviewing and discussing with
the client my 5-page opinion of that date, which denied the motion to dismiss.
The upshot of the opinion was that plaintiff’s appeal was not untimely; there
would seem to be little to discuss.
I will give the benefit of the doubt to the July 26 entry, but deduct 1 hour
from the August 8 entry and .5 (1/2) hour from the December 19 entry.
2. Plaintiff’s main brief
The Commissioner next argues that counsel’s billing of 23.75 hours to
reviewing the record and drafting Amparo’s main brief on appeal was excessive.
The district courts are required to be faithful stewards of the public
funds expended for attorneys’ fees. Thus courts have reduced counsel’s time
charges where a brief, even if substantial, contained “little new material.” See
Figueroa v. Comm’r of Soc. Sec., Civ. No. 09-03601 (D.N.J. July 12, 2010)
(allowing only 14 of the 28 hours billed for review and brief preparation);
Bantleon v. Comm’r of Soc. Sec., Civ. No. 09-02888 (D.N.J. Oct. 4, 2010) (hours
similarly reduced from 23.5 to 14.2). Langton’s status as a highly experienced
practitioner in this area must be taken into account; “when Plaintiff’s attorney
is experienced in [the] field, [the] Commissioner is entitled to additional
efficiency.” Menter v. Astrue, 572 F. Supp. 2d 563, 566 (D.N.J. 2008) (citation
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omitted). See also Gillem v. Astrue, Civ. No. 06-6184, 2008 WL 1925302 (D.N.J.
April 20, 2008) (disallowing some of time billed for preparation of brief, noting
that case was “routine,” counsel had “expertise in this area of the law,” and
that the administrative record, although lengthy, contained many pages of
“routine forms, letters and non-medical evidence”).
The time entries challenged by the Commissioner break down as follows:
Review medical and vocational exhibits to prepare
File (Did not Represent at Administrative level)

4.75

3/53/7/14

Review medical exhibits, research and
prepare rough draft of plaintiff’s brieP

14.75

3/11/14

Prepare and submit final draft of
Plaintiff’s brief to court

4.25

TOTAL

23.75

1/14/14

The result of this work was a 30-page Plaintiff’s brief. (Docket no. 22)
As the Commissioner points out, however, over 20 of those 30 pages
comprise material cut-and-pasted from briefs previously submitted by the
Langton firm. The Commissioner attaches excerpts of briefs submitted by
Langton in prior cases. These contain lengthy sections substantially identical
to the corresponding sections of the Amparo brief. (Docket nos. 33-4, 33-5)
For example, the introductory section of Amparo’s brief, pages 1-9,
consists of boilerplate law regarding the Agency’s decision-making standards
and the standard of review. Those pages duplicate verbatim the corresponding
pages of Langton’s brief in Spadaccini v. Comm’r of Soc. Sec., Civ. No. 1206246. (The relevant excerpt is attached to the Commissioner’s motion brief as
Exhibit D. (Docket no. 33-4)) These legal principles are expressed in generic
terms that do not require even the alteration of a party’s name. Whether this
brief is copied from Spadaccini, or both are copied from a common source, is
immaterial. The point is that no original work was required.
Two pages of Section B of Amparo’s brief, pp. 17-19, are identical to
pages 14-16 of the Spadaccini brief, id.. Six pages of Section C of Amparo’s
brief, pp. 21-27, are identical to pages 29-35 of the Spadaccirii brief, id.

For this entry, the Court’s analysis is hampered somewhat by the block-billing
of discrete tasks performed over a three day period.

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Four pages of Section A of Amparo’s brief are identical (with trivial
alterations) to the corresponding portion of the brief Langton submitted in
Phillips v. Astrue, Civ. No. 12-0 198, at pp. 18-23. (Docket no. 33-5)
In short, nothing was required in the preparation of over 20 pages of
Amparo brief but cutting and pasting of prior work producet; the
the
substantial work here was confined to the remaining 9-10 pages of the Amparo
brief. Although counsel has billed for review of the record, the brief contains no
significant “statement of facts with references to the administrative record.” See
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Local Civil Rule 9. 1(e)(5)(C). Virtually all of the record citations in the brief are
to the AU’s decision. The new material consists largely of application of
boilerplate legal principles to the AU’s reasoning. That, of course, is perfectly
appropriate. What is in doubt is whether the tailoring of the boilerplate to the
facts of this case justifies the hours expended.
I pause to consider the arguments of Amparo’s counsel, particularly in
his reply to the Commissioner’s brief. That submission forcefully argues for the
necessity of using standard language and recycled legal arguments. (Docket no.
34, at pp. 3-4) I agree. The Social Security cases filed in this court seek review
of regularized administrative procedures, and they inevitably involve recurring
legal concepts. Counsel—particularly those who, like the Langton firm,
specialize in this area—will develop forms and useful brief points that may be
employed again and again.
I repeat: there is nothing wrong with that. Counsel for plaintiffs, counsel
for the government, and many a court (including this one) will reuse material
from prior Social Security cases. The resulting economies of scale create
efficiencies that might be unavailable to a one-time participant. My point is
that the public is entitled to the benefit of such efficiencies when counsel bill
for their work. See Menter, 572 F. Supp. 2d at 566.
I think that the hours billed here are excessive for the preparation of a
30-page brief that consisted of more than 20 pages of recycled content, copied

This was no trivial omission. As the discussion in my Opinion reveals, the AU’s
decision failed to discuss or account for significant items in the record. Opinion,
Docket no. 30 at 4-8. The briefs for both sides, incidentally, missed an issue that was
critical to my decision. Arnparo initially sought benefits from an onset date of October
1, 2008, but revised his application so that the onset date was May 3, 2010. R 15, 42.
Plaintiff’s revision of his application substantially undercut the basis for the
subsequent decision of the AU. (This AU, to whom the case was reassigned, was
seemingly unaware of the issue when he wrote his decision.) See Opinion, Docket no.
30 at 8-10. This issue therefore could not be gleaned from the AU’s decision, but
would only be apparent from a review of the record.
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with virtually no alteration. I will deduct 5.5 hours, bringing the allowed total
from 23.75 down to 18.25 hours.
The total deductions thus amount to 5.5 hours plus 1.5 hours, or 7
hours; the allowed billable hours therefore are 47.8 hours (claimed) minus 7
hours (deducted), for a total of 40.8 hours.
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ORDER
The plaintiff having moved for an award of fees in this matter (Docket no.
32); and the Commissioner having responded (Docket no. 33); and the plaintiff
having filed a reply (Docket no. 34); and the court having reviewed the
submissions and decided the matter without oral argument, pursuant to Fed.
R. Civ. P. 78; and good cause appearing therefor;
IT IS, this 17th day of September, 2014
ORDERED as follows:
1.
Plaintiff’s attorneys, Langton & Alter, Esqs., are awarded their
reasonable fees in this matter, pursuant to 28 U.S.C. § 2412;
2.
Such fees are awarded at a rate of $183.90 per hour, for a total of
40.8 hours, resulting in a total award of$ 7503.12.
3.
Such fees may be paid directly to plaintiff’s attorneys, pursuant to
an assignment submitted with their motion.

McJ

Ho6. Kevin McNulty
United States District Judge

This is the first case in which I have been asked to resolve a challenge to fees in
a Social Security case. Disregarding the atypical issue of the motion to dismiss for
untimeliness, the allowed hours amount to about 30, and counsel’s allowed fee to
about $5600. That is more than the amount awarded in some cases that have been
cited to me, see Bantleon, supra; Figueroa, supra, and less than in others, see Gillem,
supra; Bastian v. Comm’r of Soc. Sec., 2009 WL 1438224 (D.N.J. May 20, 2009). The
facts and circumstances of those fee applications, of course, differ from those here; I
cite them only as a rough guide. I may adjust my approach, one way or the other, in
light of further experience.
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