Case 3:11-cv-00828-VLB Document 55 Filed 06/04/13 Page 1 of 10
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
CIVIL NO. 3:11CV00828(VLB)(TPS)
RULING ON APPLICATION FOR ATTORNEY'S FEES
The plaintiff has filed an Application for an Award of
Attorney's Fees and Expenses pursuant to the Equal Access to
Justice Act ("EAJA"), 28 U.S.C. § 2412, in the amount of
$17,653.80. (Dkt. #45). The plaintiff has also filed a
Supplemental Motion for Fees. (Dkt. #52). The Commissioner does
not contest that the plaintiff is the "prevailing party." The
Commissioner also does not contend that his position was
"substantially justified." However, the Commissioner argues that
the hourly rates sought by the plaintiff are excessive, and the
number of hours the plaintiff has billed on this case is
The Commissioner first challenges the hourly rates sought by
plaintiff's attorney for hours billed in 2010 and 2011. Under the
EAJA, the hourly rate is capped at $125.00, "unless the court
determines that an increase in the cost of living or a special
factor, such as the limited availability of qualified attorneys for
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the proceedings involved, justifies a higher fee." 28 U.S.C. §
2412(d)(2)(A). The Commissioner quarrels with the plaintiff's use
of the All Urban Consumers Northeast Index ("northeast regional
index"), rather than the National U.S. City Average Consumer Price
Index ("national index"). Both indices are published by the
Department of Labor's Bureau of Labor Statistics.
This Court has discretion to determine what fee is
"reasonable." See Hensley v. Eckerhart, 461 U.S. 424, 433, 437
(1983). As Judge Kravitz noted in Taylor v. Astrue, No. 3:
09CV1791(MRK), 2011 WL 1752239, at *2 (D. Conn. May 9, 2011), "28
U.S.C. § 2412(d)(2)(A) does not specify how district court judges
are supposed to go about calculating 'increase[s] in the cost of
living.' The statute does not specify whether district court
judges are supposed to calculate increases in the cost of living at
the national level, or at the local level." Moreover:
As a factual matter, "the cost of living" is different in
different places. In addition, there is nothing
inherently inconsistent about using a nationwide baseline
and adjusting that baseline by reference to more
localized figures. Particularly in light of the fact
that determinations regarding attorney fees under the
EAJA are generally left to the discretion of district
court judges, see Pierce v. Underwood, 487 U.S. 552, 558
(1988), this Court knows of no reason why a district
court would be required to ignore potentially accurate
and reliable information about the cost of living in
calculating attorney fees under the EAJA.
Taylor, 2011 WL 1752239, at *2. Although Judge Kravitz found no
need to conclusively decide which of the two indices should be used
at the time, and determined that the national index was appropriate
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in Taylor, Magistrate Judge Margolis subsequently used Judge
Kravitz's logic in ruling that the hourly rate contained in the
northeast regional index was reasonable. See Poulin v. Astrue, No.
3:10CV1930(JBA), 174 Soc. Sec. Rep. Service 10, 2012 U.S. Dist.
LEXIS 9888 at *(D. Conn. Jan. 27, 2012). This Magistrate Judge
concurs, and sees no reason to ignore the obvious fact that the
cost of living, as noted by Judge Kravitz, is different in
different places. If this were not the case, the Bureau of Labor
Statistics would not publish multiple indices. Attorney fees
motions under the EAJA are "generally left to the discretion" of
the district court. Taylor, 2011 WL 1752239, at *2 (citation
omitted). Accordingly, this Magistrate Judge finds that the
attorney's hourly rate of $185.97 in 2011 and $189.20 in 2012, as
calculated under the All Urban Consumers Northeast Index, is
The Commissioner also contests the hourly rate of $115.00 for
a paralegal who worked for one hour on the case. As the
Commissioner correctly points out, Magistrate Judge Garfinkle
recently rejected a request for $115.00 per hour for this same
paralegal, and determined that a rate of $100.00 per hour was
reasonable. See Kiely v. Astrue, No. 3:10CV1079(MRK)(WIG), 2012 WL
3727164, at *2 (D. Conn. March 30, 2012). On the other hand, the
plaintiff has cited at least two cases in which the Commissioner
has not contested a rate of $115.00 for this paralegal, and this
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Court has approved the rate. Araujo Carbonell v. Astrue, No.
3:11CV447(CSH); Bourey v. Astrue, 3:10CV34(RNC). Again, exercising
his considerable discretion, the Magistrate Judge determines that
a paralegal rate of $115.00 per hour is reasonable in this case.
II. NUMBER OF HOURS
In her initial petition, the plaintiff seeks compensation for
93.21 hours for her attorney and 1 hour for her paralegal, plus
$34.28 for expenses. (Dkt. #45-1 at 6). In a subsequent filing,
she seeks compensation for the 12.60 hours her attorney spent on
the reply to the Commissioner's opposition to the initial petition.
(Dkt. #52 at 9). The Commissioner contends that the number of
hours requested in the initial petition is unreasonable, and the
Court should reduce the number of hours to 45.91.2
A fee applicant "bears the burden of . . . documenting the
appropriate hours expended . . . ." Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). "[I]n fee-shifting determinations, courts have
discretion in deciding how much attorney time was 'reasonably
expended.'" Gomes v. Astrue, No. 3:09CV3771, 2011 WL 1900579, at *1
(2d Cir. Apr. 29, 2011). "This Court has a duty to review
plaintiff's itemized statement to determine the reasonableness of
Although the petition originally totaled 93.41 hours, the plaintiff
subsequently indicated her agreement with the Commissioner that 0.2 hours
expended on November 8, 2011 did not pertain to this civil action. See Dkt.
#52 at 9.
The Commissioner does not challenge the time expended by the paralegal,
or the requested expenses.
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the hours requested and to exclude hours 'that are excessive,
redundant, or otherwise unnecessary.'" Lee v. Astrue, No.
3:09CV1575(CSH)(JGM), 2011 WL 781108, at *4 (D. Conn. Feb. 28,
2011)(quoting Hensley, 461 U.S. at 433-34.)
In support of his argument for the reduction of the
compensable hours for plaintiff's attorney, the Commissioner first
challenges the 30.7 hours billed for drafting the Motion and
Memorandum of Law in Support of Plaintiff's Motion for Judgment.
According to the Commissioner, "significant portions of the facts
and argument sections of Plaintiff's brief were taken, largely
verbatim, from a memorandum that she had previously prepared and
submitted to the Decision Review Board at the administrative level
prior to filing the instant civil action." Dkt. #46 at 8.
Accordingly, the Commissioner seeks a one-third reduction, from
30.7 hours to 20.0 hours. The Magistrate Judge agrees with the
plaintiff that a brief before the Decision Review Board ("DRB")
"cannot be compared to a brief prepared for the federal district
court. A DRB brief may provide a starting outline for a district
court brief, but it is only a start. A district court brief
requires more thorough preparation." Dkt. #52 at 5. A comparison
of the two briefs bears out this distinction.
Nevertheless, the Magistrate Judge has carefully compared the
two briefs, as well as the detailed billing statements provided by
the plaintiff. By the Magistrate Judge's count, approximately 7 of
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the 43 pages of the two briefs are substantially similar. However,
that calculation, in and of itself, is of little import. All of
the time entries for drafting the Memorandum of Law in Support of
Plaintiff's Motion for Judgment have been itemized in such a manner
as to enable a court to determine the amount of time allocated to
each section of the brief. Upon review, the Magistrate Judge is
satisfied that the vast majority of time entries are appropriate,
and take into account the use of substantially similar material in
certain sections. The only entries deemed excessive by the
Magistrate Judge are the 2.4 hours attributed to drafting the
section on the vocational expert's alleged improper reliance on the
Occupational Employment Quarterly (OEQ). While the Magistrate
Judge notes that the plaintiff added two relevant quotations from
the record, the remainder of the section was quoted almost verbatim
from the DRB brief. The Magistrate Judge reduces the request from
2.4 hours to 1.4 hours. Accordingly, the number of billable hours
for 2011 shall be reduced by 1 hour.
The Commissioner also seeks a three-fourths reduction of the
time the plaintiff seeks for filing her forty page Opposition to
Defendant's Motion to Affirm the Decision of the Commissioner (Dkt.
#30). The Commissioner filed a motion to strike the plaintiff's
opposition motion, on the grounds that such opposition was actually
a reply brief, and thus subject to a ten page limit under Local
1.50 hours on 11/18/2011 and 0.90 hours on 11/21/2011. Dkt. #45, Ex.
A at 5-6.
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Rule 7(d). However, as the Commissioner concedes, this Magistrate
Judge granted the plaintiff's motion for leave to file the forty
page memorandum. (Dkt. #34). Accordingly, the Commissioner's
argument that the plaintiff's memorandum was "nonconforming" is
unavailing, and no reduction is warranted.
The Commissioner next seeks a reduction for the alleged
excessive time related to preparing two of her own, and reviewing
two of the Commissioner's, motions for extension of time. As
explained in the plaintiff's reply brief, the Commissioner has
combined several different entries together, and then asserted that
the time spent was excessive. For example, while the Commissioner
may be correct that the plaintiff charged 0.5 hours for time
"associated with reviewing" the Commissioner's motion for extension
of time, the attorney's detailed time entries properly account for
the time. Importantly, only 0.1 hours was spent reviewing the
proposed motion. The remaining 0.4 hours were spent reviewing an
e-mail from defense counsel, speaking to defense counsel on the
telephone, and reviewing the ECF notices generated by the Court.
All of these entries are compensable. See Rivera v. Astrue, No.
3:07CV1049(SRU)(WIG), 2009 WL 2982647, at *3 (D. Conn. Jun. 18,
2009). Upon careful review, however, the Magistrate Judge finds
that the requested time of 0.5 hours for drafting the October 21,
Although the Commissioner assigned 0.8 hours to the preparation of this
motion, the 0.3 hours that appear to be associated with tasks other than
drafting do not appear to be excessive.
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2011 motion for extension of time, which was less than one page
long, is excessive. The requested time is hereby reduced from 0.5
to 0.3 hours. Accordingly, the number of billable hours for 2011
shall be reduced by 0.2 hours. All other entries associated with
motions for extension of time are reasonable.
The Commissioner also seeks a reduction for the time spent
drafting the plaintiff's EAJA petition. At the outset, the
Magistrate Judge concurs with the plaintiff that only 2.75 hours
should be considered as having been allocated to the petition,
rather than the 4.65 hours identified by the Commissioner. Other
judges in this district have routinely found the preparation of an
EAJA petition to largely involve clerical tasks, which are not
compensable under the EAJA, and reduced such requests to 2 hours or
less. See, e.g., Taylor, 2011 WL 1752239, at *3; Hosking, 2010 WL
4683917, at *2. The Magistrate Judge agrees with this analysis,
and the number of billable hours for 2012 shall be reduced by 0.75
Next, the Magistrate Judge agrees with the Commissioner that,
in light of Judge Bryant's determination that the Court did not
have jurisdiction over a subsequent claim at the administrative
level, the plaintiff should not be compensated for time attributed
to reviewing the subsequent grant of benefits and preparing a
notice to the Court. However, the time spent reviewing the Court's
notice of receipt of the filing is compensable. Thus, the number
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of billable hours for 2012 shall be reduced by 0.4 hours.
Finally, the plaintiff seeks compensation for the 12.60 hours
spent on her reply to the Commissioner's opposition to the initial
petition. See Dkt. #52 at 9. The Commissioner has not objected to
this request and, given the breadth and substance of the filings,
the Magistrate Judge finds the amount to be reasonable.
For the reasons set forth herein, the plaintiff's Application
for an Award of Attorney's Fees and Expenses (Dkt. #45) is GRANTED
in part and DENIED in part. The Supplemental Motion for Fees (Dkt.
#52) is GRANTED. Fees are awarded in the amount of $17,175.86,
representing 90.86 hours of work for the attorney, and one hour of
work for her paralegal. The request for reimbursement of $34.28
in expenses is also GRANTED. These amounts may be paid directly to
the plaintiff's counsel pursuant to an assignment of EAJA fees if
it is shown that the plaintiff owes no debt to the government that
would be subject to offset. See Astrue v. Ratliff, 130 S.Ct. 2521
(U.S. 2010) (holding attorney's fees awarded under the EAJA are
subject to offset to satisfy claimant's pre-existing debts to the
Itemization of fees awarded:
2011 $185.97 40.2 $7,475.99
2011 $115.00 (paralegal) 1.0 $ 115.00
2012 $189.20 50.66 $9,584.87
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This is not a recommended ruling. This is a ruling on
attorney's fees and costs which is reversible pursuant to the
"clearly erroneous" statutory standard of review. 28 U.S.C. § 636
(b) (1) (A); Fed.R.Civ.P. 72 (a); and D. Conn. L. Civ. R. 72.2. As
such, it is an order of the Court unless reversed or modified by
the district judge upon motion timely made.
IT IS SO ORDERED.
Dated at Hartford, Connecticut, this 3 day of June, 2013.
/s/ Thomas P. Smith
Thomas P. Smith
United States Magistrate Judge