United States District Court, D. Connecticut
ORDER ON MOTION FOR ATTORNEY'S FEES
VICTOR
A. BOLDEN UNITED STATES DISTRICT JUDGE.
On
August 25, 2017, the Court granted a motion of the Acting
Commissioner of the Social Security Administration
(“Defendant” or “Acting
Commissioner”), on consent, under sentence four of 42
U.S.C. § 405(g), reversing the Acting Commissioner's
decision as to Jenifer Jones (“Plaintiff”) and
remanding the matter to the Commissioner for further
proceedings. Order Granting Motion to Remand to Agency, dated
Aug. 24, 2017, ECF No. 24. On August 31, 2017, the Court
entered a judgment in favor of Ms. Jones against the Acting
Commissioner. Corrected Judgment, dated Aug. 31, 2017, ECF
No. 27.
Three
months later, on November 25, 2017, Ms. Jones moved for
attorney's fees in the amount of $7, 363.84 under the
Equal Access to Justice Act (“EAJA”). Motion for
Attorney Fees, dated November 25, 2017, ECF No. 28. More than
ten months have passed since Ms. Jones filed her motion, but
the Acting Commissioner has failed to respond.
“Failure
to submit a memorandum in opposition to a motion may be
deemed sufficient cause to grant the motion, except where the
pleadings provide sufficient grounds to deny the
motion.” D. Conn. L. Civ. R. 7(a)(2). As the court
entered judgment in favor of Ms. Jones, she is presumptively
the “prevailing party” under the EAJA and may, on
a timely-filed motion, be awarded reasonable attorney's
fees. 28 U.S.C. § 2412. As the rates and hours sought by
Ms. Jones are reasonable, [1] the only question is whether her motion
was timely filed.
Under
the EAJA, a party must move “within thirty days of
final judgment in the action” for an award of
attorney's fees. 28 U.S.C. § 2412(d)(1)(B). The Act
defines “final judgment” as “a judgment
that is final and not appealable, and includes an order of
settlement.” Id. § 2412(d)(2)(G).
The
Supreme Court has explained that § 2412(d)(2)(G)
rewrites the traditional rule that a final judgment is one
that is final and appealable. See Melkonyan v.
Sullivan, 501 U.S. 89, 95 (1991). Congress added this
“unusual definition” to the statute in 1985
“to resolve a conflict in the lower courts on whether a
‘judgment' was to be regarded as ‘final'
for EAJA purposes when it was entered, or only when the
period for taking an appeal had lapsed.'”
Id. at 95-96 (citation omitted). Thus, the Court
held that a final judgment for purposes of §
2412(d)(1)(B) “means a judgment rendered by a court
that terminates the civil action for which EAJA fees may be
received. The 30-day EAJA clock begins to run after the time
to appeal that ‘final judgment' has expired.”
Id.
“In
sentence four cases, the filing period begins after the final
judgment (“affirming, modifying or reversing”) is
entered by the court and the appeal period has run, so that
the judgment is no longer appealable.” Id. at
102. In cases where one party is a United States officer or
employee sued in an official capacity, parties have 60 days
to appeal a district court judgment. Fed. R. App. P. 4. Ms.
Jones thus had ninety days to file her EAJA motion-till
November 31, 2017. Accordingly, Ms. Jones's motion was
timely filed.
Finally,
the Court notes that Nancy A. Berryhill became the Acting
Commissioner of the Social Security on January 23,
2017.[2] When a party in an official capacity
resigns or otherwise ceases to hold office while the action
is pending, the officer's successor is automatically
substituted as a party, regardless of the party's failure
to so move or to amend the case caption; the Court may also
order such substitution at any time. Fed.R.Civ.P. 25(d);
see also Williams v. Annucci, 895 F.3d 180, 187 (2d
Cir. 2018); Tanvir v. Tanzin, 894 F.3d 449, 459 n.7
(2d Cir. 2018). Accordingly, the Clerk of the Court is
respectfully directed to amend the case caption to reflect
that Nancy A. Berryhill, Acting Commissioner of the Social
Security Administration, is now the named Defendant in this
action.
Ms.
Jones's motion for attorney's fees, ECF No. 28, is
GRANTED. Ms. Smith is awarded attorney's
fees in the amount of $7, 363.84 under the Equal Access to
Justice Act, 28 U.S.C. § 2412.
SO
ORDERED
---------
Notes:
[1] Courts in the Second Circuit have
generally held that “a routine social security case
requires from twenty to forty hours of attorney time.”
Hogan v. Astrue, 539 F.Supp.2d 680, 682 (W.D.N.Y.
2008) (collecting cases). Ms. Jones seeks attorney's fees
for 38.7 hours of attorney time. Accordingly, the hours
expended by her counsel were reasonable. Courts in this
District have approved hourly rates between $190 and $197,
based on the statutory EAJA rate and adjusted for increases
in the cost of living, as reasonable rates for the years from
2014 to 2017. See, e.g., Richardson v.
Berryhill, No. 15 CV 1452, 2018 WL 3218661, at *3 (D.
Conn. July 2, 2018) (approving hourly rate of $196.10 for
2016 and 2017). Chausee v. Colvin, No. 14 CV 905,
2016 WL 4098734, at *2 (D. Conn. July 28, 2016) (approving
hourly rate of $190 for 2014, $190.25 for 2015, $191.13 for
2016); Roman v. Colvin, No. 15 CV 917, 2015 WL
9462061, at *4 (D. Conn. Dec. 28, 2015) (approving hourly
rate of $196.10 for 2015). Accordingly, the rates sought by
Ms. Jones ($184.91 for 2016 and $191.70 for 2017) are
reasonable.
[2] While there is arguably “some
doubt about Berryhill's current legal status in light of
the recent determination by the Government Accountability
Office that her tenure has expired under the Federal
Vacancies Reform Act, ” Isureal v. Berryhill,
No. 15 CV 221, 2018 WL 1409797, at *1 n.1 (D. Conn. Mar. 21,
2018) (Meyer, J.) (citation omitted), Berryhill remains the
current officeholder at this time. See ...