Casul v. Colvin

Filing 17

DECISION AND ORDERED, that Plaintiffs Motion (Dkt. No. 12) is GRANTED in part and DENIED in part; and it is further ORDERED, that Plaintiff is awarded $1,182.84 in attorneys fees pursuant to the EAJA; and it is further ORDERED, that Plaintiff is awarded $15.39 in other expenses pursuant to the EAJA. Signed by Senior Judge Lawrence E. Kahn on October 17, 2016. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RICHARD CASUL,
Plaintiff,
-against-

5:14-CV-01237 (LEK/ATB)

CAROLYN W. COLVIN,
Defendant.

DECISION AND ORDER
Before the Court is Plaintiff Richard Casul’s Motion for Attorney’s Fees, Dkt. No. 12
(“Motion”), which comes following a Consent Order and Judgment reversing the decision of the
Commissioner and remanding to the Commissioner for further proceedings, Dkt. Nos. 10
(“Consent Order”), 11 (“Judgment”). Plaintiff seeks a fees award pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), which provides that:
[A] court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party in any civil
action (other than cases sounding in tort), 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.
Here, Plaintiff prevailed on a significant issue in this litigation because he obtained “a sentencefour judgment reversing the [Commissioner’s] denial of benefits.” Shalala v. Schaefer, 509 U.S.
292, 302 (1993); see also Consent Order at 1. The Court has found no evidence suggesting that
Defendant’s position in this litigation was substantially justified. Plaintiff asks for an award of
$1,370.64, consisting of 4.4 hours of attorney work at a rate of $195.60 an hour, for a total of
$860.64, and 5.1 hours of paralegal time at $100.00 an hour, for a total of $510.00. Dkt. No. 12-1

(“Olinsky Affirmation”) at 3. Plaintiff also seeks “reimbursement of costs of $15.39 for certified
mail service of the summons and complaint.” Id.
Defendant opposes the Motion on the sole ground that special circumstances make an
award unjust because Plaintiff’s counsel failed to keep contemporaneous records of the time he
and his staff spent working on the case, Dkt. No. 13 (“Response”) at 1, a requirement for
receiving attorneys’ fees in this circuit, N.Y. State Ass’n for Retarded Children v. Carey, 711
F.2d 1136, 1148 (2d Cir. 1983); see also Handschu v. Special Servs. Div., 727 F. Supp. 2d 239,
250 (S.D.N.Y. 2010) (“[T]o satisfy Carey the proof must demonstrate that original
contemporaneous entries of sufficient specificity were punched into or logged in a database from
which the printouts or summaries are derived.”). Defendant notes that Plaintiff’s counsel has
admitted, in a sworn declaration, that he and his law firm “did not begin keeping
contemporaneous time records until August 28, 2014.” Id. at 3. Defendant also points to recent
district court decisions in which Plaintiff’s counsel was denied attorney’s fees for time billed
prior to the date on which his firm adopted an appropriate time-keeping policy. E.g., Kottwitz v.
Colin, 114 F. Supp. 3d 145, 148 (S.D.N.Y. 2015); Stroud v. Comm’r of Soc. Sec., No.
13-CV-3251, 2015 WL 2137697, at *1–2 (S.D.N.Y. May 6, 2015).
In Stroud, the court held that “attorneys’ fees incurred on or after [August 28, 2014] are
compensable” because that is when Plaintiff’s counsel’s firm “began keeping contemporaneous
time records.” 2015 WL 2137697, at *1. Similarly, in Durso v. Colvin, No. 14-CV-67, 2015 WL
5684039, at *3 (D. Conn. Sept. 28, 2015), another case involving Plaintiff’s counsel, the court
held “that the hours incurred on and after August 28, 2014, the date on which plaintiff’s
counsel’s firm began keeping contemporaneous time records, are compensable.”
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In accordance with these cases, the Court concludes that the time billed for this case on
and after August 28, 2014, is compensable. Here, there are 3.9 hours of attorney time on or after
August 28, 2014, totaling $762.84. Olinsky Affirmation at 9. There are also 4.2 hours of
paralegal time on or after August 28, 2014, totaling $420.00. Id. at 10. The appropriate fees
award is therefore $1,182.84. When added to the $15.39 request for additional postage expenses,
the total award amounts to $1,198.23, which the Court finds to be reasonable. See Cornell v.
Astrue, No. 08-CV-1021, 2012 WL 4854435, at *2–3 (N.D.N.Y. Oct. 11, 2012) (Kahn, J.).
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 12) is GRANTED in part and DENIED
in part; and it is further
ORDERED, that Plaintiff is awarded $1,182.84 in attorney’s fees pursuant to the EAJA;
and it is further
ORDERED, that Plaintiff is awarded $15.39 in other expenses pursuant to the EAJA;
and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

October 17, 2016
Albany, New York

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