United States District Court, D. Connecticut
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR ATTORNEY'S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
Standard Maerkel filed an application for social security
disability insurance benefits in 2015. The Social Security
Administration denied her application at various levels of
review, so she filed this lawsuit challenging the decision of
the Commissioner. See Doc. #1. In 2018, I ruled in
favor of Maerkel and remanded her case to the Commissioner
for further proceedings. See Doc. #28. Maerkel has
moved for an award of attorney's fees under the Equal
Access to Justice Act (“EAJA”). Although the
Commissioner agrees that a fee award is appropriate, the
Commissioner argues that Maerkel seeks compensation for an
excessive number of hours expended by her attorneys. I agree
in part, and for the reasons stated below will grant in part
and deny in part Maerkel's motion for attorney's
plaintiff like Maerkel who prevails in a civil case against
the United States may seek an award of attorney's fees
under the EAJA if the federal government's position is
not “substantially justified.” 28 U.S.C. §
2412(d)(1)(A). Because neither party in this case has argued
that the Commissioner's position was substantially
justified, I will not dwell on this inquiry and instead focus
on the question of what fee award is reasonable.
award under the EAJA must be reasonable. See Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983). Reasonableness
is a question of “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Id. at 433. In the Second Circuit,
courts typically find that a routine social security case
requires 20 to 40 hours of attorney time. See Nieves v.
Berryhill, 2017 WL 2838076, at *1 (D. Conn. 2017). The
specifics of a case will sometimes warrant a greater award,
and to make that determination, courts weigh “the size
of the administrative record, the complexity of the factual
and legal issues involved, counsel's experience, and
whether counsel represented the claimant during the
administrative proceedings.” Vonaa v.
Berryhill, 2019 WL 2206066, at *1 (D. Conn. 2019).
case, Maerkel's counsel has requested a fee award for
73.2 hours of attorney time spent on the underlying case
(including preparation of the initial EAJA application for
fees), see Doc. #33-1 at 5, and a further 6.05 hours
for preparing a reply brief to the Commissioner's
opposition to the EAJA fee application, see Doc.
#36-1 at 1. This breaks down to a request for 56.7
hours in 2017 and 22.55 hours in 2018. The Commissioner
opposes that total as unreasonable, and I agree with the
Commissioner in part.
of routine documents
I will exclude some of the time expended by Maerkel's
counsel reviewing standard court filings and emails. Her
counsel recorded individual 0.1-hour time increments for,
inter alia, reviewing CM/ECF notices of judge
assignment, the Court's standard electronic filing order,
docket entry corrections, and various scheduling orders.
See Docs. #33-2 at 1-7; Doc. #36-1 at 1. “A
reduction of time is warranted for review of standard court
filings, particularly by an attorney with experience in
social security cases.” Rivera v. Colvin, 2016
WL 1363574, at *2 (D. Conn. 2016); see also Downey v.
Astrue, 2012 WL 1205824, at *12 (E.D. Cal. 2012)
(explaining how “[s]ix-minute billing increments can
result in a rounding-up that over-calculates the time
actually spent on the tasks in total”). Here,
Maerkel's counsel billed a total of 1.4 hours in 2017,
Doc. #33-2 at 1-5, and 0.8 hours in 2018 in 0.1-hour
increments for reviewing routine CM/ECF notices and
scheduling documents, id. at 6-7. Acknowledging that
there have been more than 30 (albeit brief) docket entries in
this case to review, I find a reduction of 0.7 hours in 2017
and 0.3 hours in 2018 to be appropriate where, as here,
Maerkel's counsel could not reasonably have spent six
minutes reviewing each entry that was billed at ¶
of the record and drafting the initial brief
the Commissioner argues that Maerkel's counsel expended
an unreasonable amount of time on various preparatory work in
litigating this case. In particular, the Commissioner takes
issue with the “nearly 40 hours itemized for reviewing
the record and drafting the initial brief alone.” Doc.
#34 at 7; see also Doc. #33-2 at 1-3 (by the
Court's calculations, identifying 34.4 hours expended in
2017 on “Review Record for potential FC claim;”
“ODAR File re: Review Admin Record;” and various
“draft brief” entries, including “Motion
for Judgment, ” “Stipulation of Facts, ”
“Med Chron[ology], ” numerous procedural aspects
and ALJ findings such as “The Hearing Testimony”
and “Severity of Depression, ” and “Proof
read, ” but not including “draft brief”
entries that also include “research”).
with the Commissioner. Although Maerkel appears to contend
that the need to prepare a statement of facts was a novel and
burdensome requirement that should apparently lead courts to
routinely award more than 40 hours' worth of fees,
see Docs. #33-1 at 4-5; #36 at 2, courts in this
district have repeatedly reaffirmed the 20-40 hour standard
for social security cases in recent years, even after the
statement of facts requirement was imposed. See,
e.g., Vonaa, 2019 WL 2206066, at *1;
Yulfo-Reyes v. Berryhill, 2019 WL 582481, at *5 (D.
Maerkel's counsel argues that other circumstances of this
case-such as the length of the record and not having
represented Maerkel in administrative proceedings
below-justify the time expended in reviewing the record and
drafting the initial brief. Docs. #36 at 2-4; #33-1 at 4-5.
But a 1, 187-page record, while long, is not unusually so for
this Court. See, e.g., Doc. #21 to Garzon v.
Berryhill, No. 3:18-CV-00799 (JAM) (D. Conn. 2018) (1,
729 pages); see also Yulfo-Reyes, 2019 WL 582481, at
*4-*5 (no upward departure of the fee award for 2, 647-page
transcript). Similarly, while it may have taken Maerkel's
counsel some time to become familiar with her case, it is not
unusual in this district for new counsel to step in for a
social security appeal. See, e.g., Garzon v.
Berryhill, 2019 WL 2171234, at *1 (D. Conn. 2019);
Emerick v. Berryhill, 2018 WL 4300118, at *1 (D.
Conn. 2018). I am not persuaded that the factors surrounding
the preparation of this case merit the award of an unusually
high number of hours.
course, Maerkel's counsel did not actually spend more
than 40 hours reviewing the record or drafting the opening
brief. But to the extent that any social security case-such
as this one-will require more work than simply reviewing the
record and preparing an opening brief, using almost all of a
typical case's 40-hour “budget” on these
steps alone demonstrates a less than efficient use of time.
Accordingly, I will exclude some of the 34.4 hours that
Maerkel's counsel spent on reviewing the record and
preparing Maerkel's initial brief.
Commissioner appears to argue that a fair indication of the
excess hours spent at this stage is the time Maerkel's
counsel spent on arguments that did not pertain to the basis
for the Court's order remanding the decision of the
Commissioner. See Doc. #34 at 6-7. Although a court
may reduce an EAJA fee award when a plaintiff is unsuccessful
on one of her claims for relief, see Bathrick v.
Astrue, 2015 WL 3870268, at *6 (D. Conn. 2015), that is
not the posture of this case. It is true that the Court's
decision relied on relatively narrow errors in the ALJ's
Step Four and Step Five analysis to conclude a remand was
warranted-particularly relative to the broader claims of
error in Maerkel's motion for judgment on the pleadings.
Compare Doc. #28 at 5-9, with Doc. #16-1 at
12-31. But importantly, the Court's order remanding the
Commissioner's decision did not find in favor of the
Commissioner on any of Maerkel's claims of
error, and instead instructed the ALJ on remand to “be
sure to ...