Guadagno v. Astrue
Filing
15
ORDER granting in part and denying in part 11 Motion for Attorney Fees. Defendant is Ordered to pay Plaintiff $3773.12 within 60 days and to mail the payment to her attorney, Jere B. Fletcher. Signed by Hon. Michael A. Telesca on September 6, 2011. (MK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
SHIRLEY A. GUADAGNO,
Plaintiff,
10-CV-6348
v.
ORDER
MICHAEL S. ASTRUE,
Commissioner of Social Security,
Defendant.
__________________________________
INTRODUCTION
Plaintiff, Shirley A. Guadagno(“Plaintiff”), brought this
action
against
the
Commissioner
of
Social
Security
(“the
Commissioner”) after she was denied Social Security Disability and
Supplemental Security Income on April 30, 2010.
stipulated
to
a
remand
of
the
case
to
the
The parties
Social
Security
Administration for further proceedings pursuant to 42 U.S.C. §
405(g),
because
“significant
portions”
transcript could not be located.
this Court
Ordered
the
case
of
the
administrative
Accordingly, on May 16, 2011,
remanded to
the
Social
Security
Administration for a new hearing before an Administrative Law
Judge.
Plaintiff now moves for an award of attorney’s fees pursuant
to § 2412 of the Equal Access to Justice Act (“EAJA”) in the amount
of
$4,192.36.
Plaintiff
also
seeks
an
Order
directing
the
Commissioner to pay the fee requested directly to her attorney,
1
Jere B. Fletcher, and that this Court specify a date by which such
fees must be paid.
attorney’s
fees,
The Commissioner does not oppose an award of
but
argues
that
unreasonable and should be reduced.
the
fees
requested
are
The Commissioner further
argues that pursuant to the Supreme Court’s recent decision in
Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the fee award belongs to
the Plaintiff, and is therefore payable to her directly. They also
oppose Plaintiff’s request that the fees be paid within a specific
period of time.
For the reasons set forth below, this Court grants
in part and denies in part Plaintiff’s Motion for Attorney’s Fees.
DISCUSSION
The EAJA provides in relevant part that:
Except as otherwise specifically provided by
statute, 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 . . . brought by or
against the United States . . .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).
Here, the parties dispute whether the
amount requested is reasonable and to whom and when the EAJA fee
should be paid.
A.
Reasonableness of the Fees
The fee applicant bears the burden of establishing that the
requested fees are reasonable. See Hensley v. Eckerhart, 461 U.S.
424,
433
(1983);
Alnutt
v.
Cleary,
2
27
F.Supp.2d
395,
399
(W.D.N.Y.1998). In this Circuit, “[t]he lodestar approach governs
the initial estimate of reasonable fees.” See Grant v. Martinez,
973 F.2d 96, 99 (2d Cir.1992). Under this approach, “the number of
hours reasonably expended on the litigation [are] multiplied by a
reasonable hourly rate.” See Hensley, 461 U.S. at 433; Grant, 973
F.2d at 99.
Defendant contends that the hours expended in this
case were excessive and that Plaintiff has utilized a rate that is
inapplicable to the Western District of New York. See Def. Br. at
2-6. The Court finds that the billing rates requested ($179.57 per
hour for 2010 and $181.62 per hour for 2011) are reasonable.
However, the Court finds that a 10% across the board reduction in
fees is warranted for the reasons set forth below.
Attorney Fletcher’s Affirmation and Plaintiff’s Memorandum of
Law in support of the instant motion indicate that Plaintiff’s
attorney spent 23.1 hours working on Plaintiff’s case, which
includes the time spent preparing the instant motion. (Docket #131.) As this Court recently noted in Wilson v. Astrue,
No. 09-cv-
6488, 2011 WL 1549471 (April 21, 2011),
The Court has broad discretion to determine
the amount of time reasonably expended. See
Aston v. Sec’y. of Health and Human Serv., 808
F.2d 9, 11 (2d Cir.1986). The Court is not
required to “scrutinize each action taken or
the time spent on it” when determining what is
reasonable. See Aston, 808 F.2d at 11; see also
New York Ass'n for Retarded Children v. Carey,
711 F.2d 1136, 1146 (2d Cir.1983). District
courts in this Circuit have held that a routine
social security case requires from twenty to
forty hours of attorney time. See e.g., Cruz v.
3
Apfel, 48 F.Supp.2d 226, 230 (E.D.N.Y.1999);
Grey
v.
Chater,
1997
WL
12806
at
*1
(S.D.N.Y.1997). Further, this time may include
the time spent on EAJA fees applications. See
Trichilo v. Secretary of Health and Human
Services, 823 F.2d 702, 708 (2d Cir. 1987).
However, the fee applicant must also submit contemporaneous
time records from his or her attorney which “specify, for each
attorney, the date, the hours expended, and the nature of the work
done.” See Cruz v. Local Union No. 3 of Intern. Broth. of Elec.
Workers,
34
F.3d
1148,
1160
(2d
Cir.
1994).
“Where
the
documentation of hours is inadequate, the district court may reduce
the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983).
Further, block-billed time entries may hinder the Court’s
ability to determine whether the fees requested are reasonable;
and, in such cases, district courts are authorized to make acrossthe-board reductions, rather than undertaking a painstaking review
of each time entry. See Green v. City of New York, 403 Fed. Appx.
626, 630, 2010 WL 5174937 (2d Cir. 2010).
In this case, Attorney Fletcher’s time records are confusing,
at best, and in some cases, impossible to decipher.
For example,
in a time entry dated June 23, 2010, for 2.2 hours Attorney
Fletcher performed the following work: “TT MR.xyZ. Ofc. - Je: he’ll
today send copy of ALJ decision Conf. @ St.JNC, sign docs, copies.
She wcb by Frid. a.m.”
Many of Attorney Fletcher’s time entries
read like this, and it is impossible for the Court to determine
whether it was reasonable to spend 2.2 hours on these tasks.
4
Also,
as exemplified by the above entry, Plaintiff’s attorney block-bills
tasks, similarly complicating this Court’s determination of whether
the fees requested are reasonable.
Lastly, the Court notes that
many of the tasks appear to be clerical in nature, for example, on
July 27, 2010, Attorney Fletcher spent a certain amount of the .7
hours billed to “open & copy/print 7/26 2x EmsF Ct-wdny.”
The
Court assumes, but cannot be certain, that this entry represents
that
Attorney
Fletcher
billed
a
certain
amount
of
time
-
undecipherable based on the record - printing and copying the
docket sheet or an entry from the docket sheet.
Based on the insufficiency of Attorney Fletcher’s records, as
described above, this Court finds that a 10% across the board fee
reduction is warranted in this case.
Accordingly, this Court
awards Plaintiff EAJA fees in the amount of $3773.12.
B.
Fees are Payable to the Plaintiff
In a recent decision involving Plaintiff’s attorney, this
Court
found
that
attorney’s
fees
awards
are
payable
to
the
Plaintiff pursuant to the Supreme Court’s recent decision in
Astrue v. Ratliff, 130 S.Ct. 2521, 2526-7 (2010), however, they may
be mailed to the office of Plaintiff’s attorney. See Wilson v.
Astrue,
No. 09-cv-6488, 2011 WL 1549471 (April 21, 2011).
Accordingly, this Court Orders that the above fee be made payable
to the Plaintiff and mailed to Plaintiff’s attorney, Jere B.
Fletcher, at his regular place of business.
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Further, the Court finds that Plaintiff’s request that fees be
payable within a specific amount of time is reasonable and hereby
Orders Defendant to pay such fees within 60 days of the date of
this Order.
CONCLUSION
For
the
reasons
set
forth
above,
this
Court
Orders
the
Defendant to pay Plaintiff $3773.12 in attorney’s fees and to mail
the award to the Plaintiff’s attorney within 60 days of the date of
this Order.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 6, 2011
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