CINTRON v. COMMISSIONER OF SOCIAL SECURITY

Filing 30

OPINION/ORDER granting 25 Motion for Attorney Fees. Signed by Judge Kevin McNulty on 6/25/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-cv-7 125 (KM)

ALICIA CINTRON,
Plaintiff,

OPINION & ORDER
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on Plaintiff Alicia Cintron’s
motion for attorneys’ fees (ECF No. 25), pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C.

§ 2412(d). The Commissioner of Social

Security (“Commissioner”) opposes this motion (ECF No. 28), contending
that the amount of attorneys’ fees requested is excessive.
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
, including proceedings for judicial
in any civil action
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 November 22, 2013, Cintron filed a complaint in this Court
appealing the final decision of the Commissioner that denied her claim
for Title II Disability Insurance Benefits (“DIB”) and Title XVI

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Supplemental Security Income (“SSI”). (ECF No. 1) On December 2, 2014,
this Court remanded the decision of Administrative Law Judge (“Al.J”)
Richard L. De Steno dated July 6, 2012. (ECF Nos. 22, 23) Therefore,
Cintron is a prevailing party under the EAJA.
Pursuant to the EAJA, Cintron’s counsel, the Rutgers School of
Law—Newark Urban Legal Clinic (specifically, Jon C. Dubin), originally
requested attorneys’ fees in the amount of $13,671. (P1. Mot. 25—
Proposed Order, ECF No. 25). His application, however, now reflects a
net upward adjustment to $14,737.24 (75.19 hours of attorney time at
an hourly rate of $196). (P1. Reply 15, ECF No. 29) Mr. Dubin’s adjusted
request reflects (1) certain voluntary reductions in requested
compensation; (2) 7.25 additional hours for his reply brief on this
motion; and (3) one hour for e-mail exchanges between the parties
relating to the attorneys’ fees application.’
The Commissioner does not make any “substantial justification”
argument under the EAJA or question Mr. Dubin’s calculated hourly rate
of $196. Rather, her sole contention is that the amount of time expended
on the litigation was excessive. The Commissioner estimates that this
case warrants compensation for twenty to forty hours of work.
A court may only award reasonable attorneys’ fees under the
EAJA. See 28 U.S.C.

§ 2412(d)(2)(A); see generally Hensley

t’.

Eckerhart,

461 U.S. 424, 433, 437 (1983) (a 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. Comm’r of Soc. Sec., 2008 WL 2704831, at *2 (D.N.J. July 7, 2008)
(citing Taylor v. United States, 815 F.2d 249, 252 (3d Cir. 1987)). 28
U.S.C.

§ 2412(d)(1)(C) itself provides that “[tjhe court, in its discretion,

The Commissioner did not seek to file any additional objection to items
(2) and (3), i.e., the additional 8.25 hours for which Mr. Dubin seeks
compensation.
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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.

§

24 12(d)( 1)(C).
The party seeking fees has the burden of showing that the dollar
amount of the request is reasonable. Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990). 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, 21 1—12 (3d Cir. 2000)
(“[Al court may not reduce counsel fees sua sponte as ‘excessive,
redundant, or otherwise unnecessary’ in the absence of a sufficiently
specific objection to the amount of fees requested.); Bell v. United
Princeton Properties, 884 F.2d 713, 715 (3d Cir. 1989).

The sole issue here is whether the number of hours Mr. Dubin
expended on this litigation was excessive. Specifically, the Commissioner
considers unreasonable Mr. Dubin’s expenditures of (1) 19.75 hours for
his L. Civ. R. 9.1 brief; (2) one hour for reviewing emails and attachments
relating to an extension request; and (3) 6.75 hours for this motion for
attorneys’ fees. I address each of these objections in turn.
1. Preparation of L. Civ. R. 9.1 brief
The Commissioner argues that Mr. Dubin’s expenditure of 19.75
hours on his L. Civ. R. 9.1 brief (ECF No. 13) is excessive since the brief
copies a great deal of material from Mr. Dubin’s L. Civ. R. 9.1 letter (ECF
No. 10). In his reply, Mr. Dubin voluntarily reduced his request from
19.75 hours to 17.78 hours. (P1. Reply 9)
The time entries challenged by the Commissioner are as follows:
5/2/14

Additional legal research for brief

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3.75

5.75

5/05/ 14

Drafting Rule 9.l(e)(l) brief

5/07/14

medical source and medical and pharmaceutical terms
research (2.75); continued drafting/editing of brief
5.50
(2.50)

5/08/14

Final editing; corrections; revisions on brief

4.75

TOTAL

19.75

(P1. Mot. 31) The resulting Rule 9.1 brief was forty pages long. (ECF No.
13) As noted, Mr. Dubin has reduced the hours for which he requests
compensation from 19.75 to 17.78.
As the Commissioner points out, much of the brief includes
material previously used by Mr. Dubin in the Rule 9.1 letter (ECF No.
10). For example, Point B on page 3 of Mr. Dubin’s letter is substantially
similar to the same point on pages 18—19 of Mr. Dubin’s brief. (Compare
Rule 9.1 Letter at 3 with Rule 9. 1 Brief at 18—19) The Commissioner
argues that most of the brief’s arguments are similar to those made in
the letter. Courts have reduced counsel’s time charges where a brief,
even if substantial, contained “little new material.” Figueroa v. Co,nm’r of
Soc. Sec., Civ. No. 09-3601, Slip Op. at 5 (D.N.J. July 12, 2010) (allowing
only 14 of the 28 hours billed for review and brief preparation). However,
that does not appear to be the case here.
Certainly there are many similarities between the letter and the
brief. However, the brief is not so similar to the letter as to suggest that
minimal effort was involved in drafting it. Compare Amparo v. Comm’r of
Soc. Sec., No. 2:12-CV-6403 KM, 2014 WL 4678033, at *5 (D.N.J. Sept.
18, 2014) (in which I noted that nearly two-thirds of a brief was “copied
with virtually no alteration”). The argument section of the brief can be
described as a heavily edited version of the letter; although the headings
and main points are similar, there are new sentences, new paragraphs,
new arguments, new case law, and new record citations in the brief.

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None of the brief’s sections appear to be fully copied. In addition, the
brief includes a nine-page statement of facts and a two and a half-page
summary of argument—neither of which were included in the letter.
I therefore will permit 17.78 hours of attorney time for the
preparation of the brief.
2. Review of email and attachments pertaining to extension
request
Next, the Commissioner argues that it was unreasonable for Mr.
Dubin to spend one hour reviewing an email and attachments pertaining
to an extension request on June 18 and June 19, 2014. In his reply, Mr.
Dubin voluntarily reduced that request from one hour to .5 hours for
these items. (PT. Reply 9)
The time entries challenged by the Commissioner are as follows:
6/18/14

E-mail exchange with Defendant’s counsel, S.A.U.S.A.
Lauren Myers, Esq., re: her request for extension of
.25
time

6/19/14

Follow-up E-mail exchange with SAUSA Myers re: her
request for extension of time; review of proposed order;
.75
review of her letter to court
1.00

TOTAL
(P1. Mot. 31)

I see no need to reduce the request further. Two email exchanges
including attachments might well require half an hour of an attorney’s
time. Moreover, the Commissioner did not submit these email exchanges
to the Court to aid in this determination.
3. Preparation of motion for attorneys’ fees
Finally, the Commissioner contends that it was unreasonable for
an attorney of Mr. Dubin’s expertise to spend 6.75 hours on a routine
motion for attorneys’ fees under the EAJA. In his reply, Mr. Dubin

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voluntarily reduced his request from 6.75 hours to 6.41 hours for this
item. (P1. Reply 10)
The time entries challenged by the Commissioner are as follows:
12/18/14

Preliminary review/summary of time records;
commence preparation of EAJA fee application,
declaration, proposed order; research for application
1.75

12/19/14

Continue drafting fee application

12/21/14

Finalizing/final editing/corrections/final revisions of
Fee motion/application and notice of fee
motion / application
2.75
TOTAL

2.25

6.75

(P1. Mot. 31—32) (As noted, the request has been reduced to 6.41 hours.)
The Commissioner does not lodge any specific objection to the
number of hours Mr. Dubin spent compiling this motion, apart from
arguing that his request is excessive.
Mr. Dubin’s moving brief for attorneys’ fees is twenty-four pages
long. It includes citations to this Court’s remand opinion and case law. It
analogizes to other cases in which the Rutgers Urban Legal Clinic has
received similar awards of attorneys’ fees. Attached to the motion are a
proposed order, a declaration, a time log of hours by Mr. Dubin, a copy of
Cintron’s retainer agreement, and a copy of Judge Chesler’s opinion in
an analogous case. I do not find it unreasonable for counsel to have
spent 6.41 hours producing this work product.
I do note, however, that the work product, and the time expended,
may be disproportionate. Lacking any specific objection, I will not reduce
it. Counsel should be aware, however, that the Court is well able to
assess the nature and quality of counsel’s efforts. An application for fees
need not be overly elaborate.

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An expenditure of 75.19 hours is frankly somewhat high. Under
the circumstances, however, I will not find it unreasonable in this case.
The Rutgers Urban Legal Clinic did not represent Cintron until her
appeal before this Court. (P1. Mot. 18) Counsel had to examine the case,
interview Ms. Cintron, and review the record. The briefing went far
beyond mere legal boilerplate. As Judge Chesler reasoned in a previous
case involving the Rutgers Urban Legal Clinic: “[Tjhe quality of the briefs
submitted by Plaintiff to this Court was quite good. Perhaps the briefs
were done more carefully, even exhaustively, than is typical in Social
Security litigation, but that does not make the amounts of time
requested unreasonable. Plaintiff’s counsel should not be penalized for
doing careful work.” Thomas v. Comm’r of Soc Sec., Civ. No. 07-4779
(SRC), Slip. Op. at 6 (D.N.J. Apr. 7, 2011) (awarding $29,757 based on
163.50 attorney hours to the Rutgers Urban Legal Clinic). I will not
penalize careful work. As I have observed in previous cases, however,
lawyers who have gained expertise in the Social Security field should
maintain a brief bank of recurring legal issues.
ORDER
For the foregoing reasons,
IT IS this 25th day of June, 2015,
ORDERED that Plaintiff’s motion for attorneys’ fees (ECF No. 25) is
GRANTED; and it is further
ORDERED as follows:
1. Plaintiff’s attorneys are awarded their reasonable attorneys’
fees and costs, pursuant to the Equal Access to Justice Act.
2. Such fees are awarded at a rate of $196 per hour, for a total
of 75.19 hours, resulting in a total award of $14,737.24.

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3. Such fees may be paid directly to Plaintiff’s attorneys,
pursuant to the executed assignment submitted with their
motion.

iiiiiCNULTY
United States District Judge

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