BEATTIE V. COMMISSIONER OF SOCIAL SECURITY

Filing 34

OPINION. Signed by Judge William J. Martini on 2/16/17. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:15-cv-0235 (WJM)

MICHAEL BEATTIE,
Plaintiff,

OPINION
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the Court on Plaintiff Michael Beattie’s motion for
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The
Commissioner of Social Security (the “Commissioner”) opposes the motion. The
Commissioner does not contest that Plaintiff is the prevailing party, nor does the
Commissioner object to counsel’s hourly rate; rather, the Commissioner solely argues that
the numbers of hours billed is excessive. Because the Court finds that the number of hours
for which Plaintiff seeks payment is reasonable, Plaintiff’s motion is GRANTED.
I.

RELEVANT BACKGROUND

In January 2015, Plaintiff brought this action in this Court pursuant to 42 U.S.C.
§ 405(g) seeking review of a final determination by the Commissioner denying his Title II
application for Disability Insurance Benefits (“DIB”) under the Social Security Act
(“SSA”). ECF No. 1. Plaintiff was represented by his present counsel, Jon C. Durbin, a
tenured professor at the Rutgers School of Law Urban Legal Clinic. Counsel did not
represent Plaintiff in the administrative proceedings below.
In January 2016, following full briefing by the parties, this Court affirmed the
Commissioner’s decision. ECF No. 20. Plaintiff timely filed a notice of appeal. ECF No.
22. In July 2016, Plaintiff filed a 60-page brief in the Third Circuit appealing this Court’s
decision. In August 2016, the Commissioner filed an unopposed motion before the Third
Circuit for full remand, and the matter was remanded to this Court. ECF No. 24. In
October 2016, this Court vacated the Commissioner’s decision and remanded under
sentence four of § 405(g). ECF No. 26.

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Plaintiff’s counsel now moves for attorney’s fees in the amount of $33,758.28 for
approximately 170 hours of work. ECF Nos. 28 (Br.), 33 (Reply). The Commissioner
opposes, arguing that this request is excessive, and that $20,660.64 for 104 hours of work
is reasonable. ECF No. 32 (Opp.).
II. LEGAL STANDARD
Under the EAJA, the Court “shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by the party in any civil action . . . including
proceedings for judicial review of agency 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). Any fees awarded pursuant to EAJA must be
“reasonable.” Id. §§ 2412(b), (d)(2)(A). A fee applicant bears the burden of establishing
entitlement to a reasonable award and documenting the appropriate hours expended and
hourly rates. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rode v. Dellarciprete,
892 F. 2d 1177, 1183 (3d Cir. 1990). The Supreme Court has cautioned that “[c]ounsel for
the prevailing party should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at
434.
A district court has broad discretion in determining the appropriate amount of a fee
award. Id. at 437. However, a court may not conduct a “generalized proportionality review
of the entire fee award” in response to the Government’s “bare allegation in general terms
that the time spent was excessive.” U.S. v. Eleven Vehicles, 200 F. 3d 203, 218 (3d Cir.
2000) (Alito, J. concurring).
III.

DISCUSSION

In this case, the Commissioner does not contest Plaintiff’s claim that he is the
“prevailing party” under the EAJA, nor does the Commissioner object to the hourly rate
requested ($198.66 per hour). The Commissioner’s sole contention is that Plaintiff has
billed for an excessive number of hours. The contested hours are presented in the table
below.

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Task

No. of Hours Pl’s No. of Hours Comm’r
Counsel Billed
Says are Reasonable

Pre-Complaint Investigation

17.5

6

Plaintiff’s 9.1(d) Letter

12

12

Opening 40-Page District Court Brief

21.375

16.75

14-Page Reply Brief

14

8

Appellate Work (Incl. 60-Page Brief)

84.81

39.50

EAJA Fee Brief

20.5

19.75

Total No. of Hours

169.93

104

In all, Plaintiff’s counsel seeks $33,758.28 in fees for approximately 170 hours of
work. The Commissioner contends that this request is excessive, and that $20,660.64 for
104 hours of work is reasonable. For the following reasons, the Court finds that the hours
requested by Plaintiff are reasonable and will award the full fee amount requested.
Pre-Complaint Investigation Work
Plaintiff’s counsel explains that he spent 17.5 hours between December 10, 2014
and January 13, 2015 on pre-investigation work. The Commissioner contends that 6 hours
is “more than generous” for this work.
The Court rejects the Commissioner’s non-specific challenge to the pre-complaint
time, and will award the full 17.5 hours requested. See Eleven Vehicles, 200 F. 3d at 218.
In doing so, the Court notes that Plaintiff’s counsel did not serve as counsel in Plaintiff’s
agency proceedings and, thus, had to learn the case, interview and counsel the client, and
consult prior counsel. See Gonzalez v. Astrue, 564 F. Supp. 2d 317, 320 (D.N.J. 2008)
(finding that additional hours were warranted where counsel had not represented the client
at the district court level). In fact, “reviewing the full administrative transcript could easily
take a day’s work.” Chonko v. Comm'r of Soc. Sec. Admin., 624 F. Supp. 2d 357, 361
(D.N.J. 2008). Moreover, the claimant in this case has been found to suffer from serious

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communicative and interpersonal challenges due to his psychiatric impairment. Therefore,
more time than usual was necessarily expended meeting with the client and conferring with
his caseworker. Counsel should not be punished for spending an adequate amount of time
ensuring that his client is able to understand the complexity of his case; therefore, the Court
will award the full amount of hours requested for counsel’s pre-complaint work.
District Court Briefs
Plaintiff’s counsel filed two briefs before the district court: a 40-page opening brief,
for which he billed 21.375 hours, and 14-page reply brief, for which he billed 14 hours.
The Commissioner argues that 16.75 hours for the opening brief and 8 hours for the reply
brief, respectively, are reasonable. The Commissioner maintains that Plaintiff’s case did
not involve novel or complex issues and that the time spent was excessive because the
research had already been done at the 9.1 Letter stage.
In Maldonado v. Houstoun, the Third Circuit stated that a reasonable amount of time
to spend on a 41-page brief would be 120 hours, approximately 3 hours per page.
Maldonado, 256 F.3d 181, 186 (3d Cir. 2001). Since then, courts in this district have
regularly applied the “3 hours per page” rule in determining the reasonableness of hours
spent on a brief in social security cases. See, e.g., Bilak v. Colvin, 73 F. Supp. 3d 481, 488
(D.N.J. 2014) (finding that the hours spent was within the “stated average” of 3 hours per
page);” Halley v. Comm’r of Soc. Sec., 2014 WL 334779, at *1 (D.N.J. 2014) (stating that,
because judges in this district apply a 3-hour per page standard, Plaintiff’s counsel started
off with “60 hours in the bank” for a 20-page brief); Chahua v. Astrue, No. 10-cv-4093,
2011 WL 2491232, at *2 (D.N.J. June 21, 2011) (finding that “briefing in this matter falls
well below Third Circuit precedent approving up to three hours per page spent on
briefing.”).
In this case, the Court finds that the hours billed for each of the district court briefs
are reasonable. Counsel billed approximately one-half hour per page for his opening brief,
and an hour per page for his reply brief. This is well below the benchmark set by
Maldonado and subsequently applied to social security cases in this district. Moreover,
counsel has clearly been cognizant of the need to keep attorney’s fees down: counsel does
not seek reimbursement for any of his costs, has voluntarily reduced his time by 5% for his
opening brief, and certifies that “[w]ell over 100 hours of law student time has been deleted
from this application to ensure the application’s reasonableness.” ECF No. 31. See Bilak,
73 F. Supp. 3d at 487 (EAJA reasonableness further bolstered by voluntary reductions in
attorney time and elimination of law student time); Gonzalez, 564 F. Supp. 2d at 320-21
(same).
Appellate Level Work
Finally, the Commissioner challenges the 86 hours Plaintiff’s counsel spent at the
appellate level. Specifically, the Commissioner contends that the 66.37 hours that

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Plaintiff’s counsel billed for his appellate brief was “grossly excessive,” maintaining that
32 hours, at most, should adequately compensate for this time.
The Court agrees that, on its face, 86 hours spent at the appellate level in a routine
social security case could be deemed excessive, especially where Plaintiff’s counsel
represented his client at the district court level. However, the Court has reviewed
Plaintiff’s 60-page brief on appeal and finds that counsel’s billing request reasonable. First,
“the appellate portion of a social security case may reasonably require more time than the
portion before the trial court.” Chonko, 624 F. Supp. 2d at 360. In this case specifically,
counsel spent 15 pages of the appellate brief arguing the question of whether a claimant’s
moderate restrictions in concentration, persistence, and pace are impliedly incorporated in
a hypothetical question to a vocational expert restricted to unskilled, “simple” jobs. App.
Br. at 46-60. In doing so, counsel urged the Third Circuit to reaffirm its holding in Ramirez
v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004), in light of contrary subsequent Third Circuit
decisions relied upon by the district court in its decision. This argument was not – and
could not have been – raised in district court, and justifies the extra time spent researching
and writing the appellate brief. In any case, 66.37 hours for a 60-page brief is far less than
the 3-hour per page benchmark described above. Additionally, the Court notes that the
quality of Plaintiff’s appellate brief was thorough, exhaustive and – most important –
successful. “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).
Finally, the reasonableness of Plaintiff's request is further bolstered by similar social
security cases in which courts have found similarly-requested attorney hours to be
reasonable and awarded appropriate fees. See Gonzalez, 564 F. Supp. 2d at 320 (awarding
$30,217.95 for 181 hours); Bilak, 73 F. Supp. 3d at 488 (awarding $34,207.02 for 176
hours); Cintron v. Comm'r of Soc. Sec., 13-CV-7125, 2015 WL 3938998, at *4 (D.N.J.
June 25, 2015) (awarding 14,737.24 for 75 hours of work done at the district court level
alone); Walton v. Massanari, 177 F. Supp. 2d 359, 363–365 (E.D Pa. 2001) (awarding
$25,410 for 180 hours).
The Court will therefore award $33,758.28 in attorney’s fees, payable directly to the
Rutgers Law Clinic, unless Plaintiff has any outstanding debts to the federal Government.1

In doing so, the Court rejects the Commissioner’s argument that the attorney’s fees should go to Plaintiff, not his
attorney. The EAJA directs the award of any Attorney's fees directly to the prevailing party. 28 U.S.C. §
2414(d)(1)(A). However, in this case, the legal work was performed pro bono, so there is no question of whether
fees should be directed to the client to reimburse him for any sums already paid to counsel. To the contrary, where,
as is the case here, there is an assignment agreement and the prevailing party owes no debt to the government, the
Supreme Court has honored that agreement and awarded attorney's fees directly to the prevailing party’s counsel.
See Astrue v. Ratliff, 560 U.S. 586 (2010); see also Bilak v. Colvin, 73 F. Supp. 3d at 488, n.3.
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IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for attorney’s fees is GRANTED. An
appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: February 16, 2017

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