HALSEY v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION & ORDER granting 10 Motion for Attorney Fees. Signed by Judge Kevin McNulty on 4/14/14. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BONITA HALSEY,

Civ. No. 2:13-0900 (KM)
Plaintiff,
v.

OPINION & ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MCNULTY, U.S.D.J.:

This matter comes before the Court on Plaintiff’s motion for attorney’s
fees, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
Docket No. 10. The Commissioner of Social Security (the “Commissioner”)
opposes this motion (Docket No. 11), contending that counsel was
administratively ineligible to practice law for part of the period that this appeal
was pending.
In relevant part, the EAJA provides:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to
subsection (a), 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.
.

28 U.S.C.

.

§ 2412(d)(1)(A).

On February 13, 2013 Plaintiff Bonita Halsey, for I.F.B., a minor, filed a
Complaint in this Court appealing the final decision of the Commissioner that
denied the minor Social Security Income benefits. Docket No. 1. Subsequently,

this Court filed a Consent Order reversing the decision of the
Commissioner
and remanding the matter to the Social Security Administration
for further
administrative action. Docket No. 9. Therefore, Plaintiff is a prevail
ing party
under the EAJA.
Pursuant to the EAJA, Plaintiff’s counsel, Langton & Alter, Esquir
es,
have moved for attorneys’ fees and costs in the amount of
$2,832.50 (2,482.50
in attorneys’ fees and $350.00 in filing fees). Docket No. 10-2
at 1. The
Commissioner does not object to the calculation or reasonableness
of Plaintiff’s
request. The Commissioner does not make any “substantial justific
ation”
argument under the EAJA (nor could she; she consented to a remand
). The sole
issue in contention is “whether Plaintiff is entitled to compensation
for hours
worked by her Counsel when her Counsel simultaneously was declare
d by the
New Jersey Supreme Court to be administratively ineligible to
practice law in
the State of New Jersey.” Docket No. 11 at 1.
New Jersey Court Rule 1 :28A requires that “every attorney who practic
es
in this State shall maintain” an Interest on Lawyer Trust Account (“IOLT
A”), the
interest from which is “to be used to fund law-related, public-intere
st
programs.” N.J. Ct. R. 1:28A-1(a), A-2(a). Pursuant to Rule
1:28A-2(d),
attorneys must annually register with the IOLTA Fund Trustees.
N.J. Ct. R.
1:28A-2(d). Failure to do so results in an attorney’s inclusion “on a list
of those
attorneys deemed ineligible to practice law in New Jersey by Order
of the
Court.” Id.
I accept for present purposes the Commissioner’s assertion that 4.75
of
the 13.5 hours worked by Plaintiff’s counsel on this case occurred
when
Plaintiff’s counsel was temporarily ineligible to practice law under New
Jersey
Rule 1 :28A. The Commissioner submits that, because Plaintiff’s attorne
ys had
not complied with the IOLTA annual registration requirement for
a period of
time, they are also ineligible to receive compensation under the EAJA
for hours
worked during that period of ineligibility. In support, the Commissione
r cites
this District’s Local Rule 101.1(b). That Local Rule states, in part: “Any
New
Jersey Attorney deemed ineligible to practice law by order of the New
Jersey
Supreme Court entered pursuant to New Jersey Court Rule 1:28-2(a) shall
not
be eligible to practice law in this Court during the period of such ineligibility.”
Id.
The Commissioner has made a similar argument in multiple cases. As
a
result, this issue of counsel’s eligibility to receive EAJA fees has
been
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considered, and is currently under consideration by, other
judges of this Court.
See Kane v. Commissioner of Social Security, No. 1 2-cv1899 (granting
attorneys’ fees, Docket Nos. 25, 26); Ross v. Commissioner
of Social Security,
No. 12-cv-2816-MAS (granting attorneys’ fees, Docket
No. 26); Lebron v.
Commissioner of Social Security, No. 12-cv-51 18—FSH (granti
ng attorneys’ fees,
Docket No. 22); Szaroleta v. Commissioner of Social Securi
ty, No. 12—cv-4834FLW (motion for attorneys’ fees pending, Docket No.
14); Cardona v.
Commissioner of Social Security, No. 12-4026-JLL (granting
attorneys’ fees,
Docket No. 22); Lopez v. Commissioner of Social Security,
No. 12-cv-7238-JLL
(granting attorneys’ fees, Docket No. 17); Correra v. Comm
issioner of Social
Security, No. 12-cv-5493 (granting attorney’s fees, Docket
No. 21). The decided
cases, as the citations make apparent, have uniform
ly rejected the
Commissioner’s position and awarded fees.
Having carefully considered the parties’ submissions on this
issue, I find
myself in complete agreement with the thorough and well-re
asoned opinion of
the District Judge Katharine S. Hayden in the matter of Kane
v. Commissioner
of Social Security, Civil Action No. 12-1899 (Docket No.
25). There, Judge
Hayden noted that Local Rule 101.1(b) “specifically addresses
only those
attorneys deemed administratively ineligible to practice pursuant
to New Jersey
Court Rule 1:28-2(a).” Kane ex rel. Kane v. Comm’r of Soc. Sec.,
CIV. 12-1899
KSH, 2013 WL 6669189, at *7 (D.N.J. Dec. 18, 2013). That
Rule, 1:28-2(a),
requires, inter alia, that attorneys maintain an IOLTA accoun
t. Judge Hayden
held that our Local Rule does not address attorneys who are delinq
uent under
New Jersey Court Rule 1 :28A-2(d), which requires that attorneys
file an annual
registration statement confirming that they are in good standin
g with JOLTA
requirements. I do not find the Commissioner’s analogy
between the two
sections compelling, nor do the equities tend in that direction.
For the reasons Judge Hayden articulated in Kane v. Commissione
r of
Social Security, which this Court adopts,
IT IS this 14th day of April 2014,
ORDERED that Plaintiff’s motion for attorneys’ fees (Docket
No. 10) is
GRANTED; and it is further

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ORDERED that Plaintiff’s attorneys are awarded attorneys’ fees and
costs in the amount of $2,832.50, if plaintiff does not owe a debt subject to
offset, pursuant to the Equal Access to Justice Act.

KEVIN MCNULTY
United States District Judge

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