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Gomez v. Astrue

August 5, 2008


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Plaintiff has filed a motion for attorney's fees under the Equal Access to Justice Act. For the reasons discussed below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.


In this action, Plaintiff sought judicial review of the Commissioner's denial of her application for Disability Insurance Benefits under Title II of the Social Security Act. In an order filed on September 10, 2007, the Court granted Plaintiff's motion for summary judgment. The Court found that (1) the ALJ failed to provide valid reasons for rejecting Plaintiff's treating physician's assessment of Plaintiff's functional limitations; and (2) the ALJ's reasons for discrediting Plaintiff's allegations of pain were legally insufficient. The Court remanded the case for a determination of the onset date of Plaintiff's disability and a calculation of benefits.


Under the Equal Access to Justice Act ("EAJA"), the prevailing party, other than the United States, is entitled to attorney's fees unless the government's position was substantially justified or special circumstances exist that render the award of fees unjust. 28 U.S.C. § 2412(d)(1)(A). Defendant does not dispute that Plaintiff is the "prevailing party," nor does Defendant contend that the Government's position was substantially justified. Therefore, the Court finds that Plaintiff is entitled to EAJA fees.

The award of attorney's fees under the EAJA must be reasonable. 28 U.S.C. § 2412(d)(2)(A). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be excluded form an award of fees. Id. at 434. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)).

Plaintiff seeks fees based on an hourly rate of $165. Defendant does not challenge the reasonableness of this hourly rate. The Court finds that the hourly rate is reasonable and fairly takes into account the relevant cost of living adjustment.*fn1

Plaintiff's counsel billed 77.71 hours in connection with the litigation of this action and the preparation of the EAJA fee motion. Plaintiff's counsel also seeks an additional 2.5 hours for reviewing Defendant's opposition to the fee motion and 11.75 hours for researching, drafting, and editing the reply brief.

Upon review of the itemization of the billed hours, the papers filed in connection with the EAJA fee motion, and the record, the Court finds that certain of the hours billed by Plaintiff were excessive or improperly charged to the client. The specific reductions applied by the Court are detailed below.

1. Clerical Work

Defendant argues that Plaintiff is not entitled to 7.73 hours of clerical work relating to the filing of papers and the calendaring of dates. The Court agrees that the act of filing is secretarial and should not be compensated. However, it is proper for an attorney to ensure that papers have been properly filed -- e.g., by reviewing the docket or the notice of electronic filing. Therefore the Court will allow .1 of an hour in connection with the filing of each of the Complaint, motion for summary judgment, reply, and EAJA motion papers (a total of .4 hours).

Calendaring that does not involve the calculation of dates is clerical. Therefore the Court will not allow recovery for "calendering." The Court will allow .1 of an hour for the review of each of the following documents: (1) the notice of appearance; (2) the original scheduling order; and (3) the amended scheduling order.

Defendant also challenges the time entries related to preparing, delivering and calendering the service of summons. With the exception of the time spent delivering the papers to the U.S. Marshals, these are billable tasks. On October 20, 2006, Plaintiff's counsel billed 2.75 hours for the preparation, review, and editing of the forms and round trip travel for the delivery of the forms. (On other dates, Plaintiff's counsel billed an additional .8 hours for the review of the forms, preparation of the forms, and review and calendering of the Return of Process.) It is unclear what portion of the 2.75 hours was spent delivering the papers. However, the Court estimates that a round trip from Plaintiff's counsel's ...

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