Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McKevitt v. Colvin

United States District Court, N.D. New York

May 1, 2014

Terrance M. McKevitt, Plaintiff,
Carolyn W. Colvin, Defendant.


THOMAS J. McAVOY, Senior District Judge.

Plaintiff's attorney, Irwin M. Portnoy of Irwin M. Portnoy and Associates, P.C., moves for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner contends that the requested attorney's fees are excessive and unreasonable and opposes awarding the full amount requested. For the following reasons, the motion is granted in part.


The Plaintiff, Terrance M. McKevitt, filed a complaint on August 16, 2011, appealing a final decision of the Commissioner of Social Security that denied Plaintiff's application for Supplemental Social Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Pl.'s Br., dkt. # 9, at 1. On September 11, 2013, the Second Circuit vacated this Court's decision affirming the Commissioner's opinion and remanded the matter back to the Commissioner. See Order, dkt. # 27.

On August 13, 2013, Plaintiff filed a motion seeking attorney's fees in the sum of $13, 128.39 for 69.27 hours expended and $825.49 for costs incurred in this action against the Commissioner. Mot. For Attorney Fees, dkt. # 22, at 5. On September 4, 2013, Defendant filed a response in opposition to Plaintiff's request, asserting that the requested fee was excessive. On November 21, 2013, after the Court granted leave, Plaintiff filed a reply memorandum and an amended fee petition requesting an increased amount in attorney fees of $16, 109.42, which represents an additional 16.03 hours, 11.66 hours expended in preparing the EAJA petition and reply to the Commissioner's opposition and 4.37 hours inadvertently omitted for services rendered in 2011. See dkts. # 31-32. On December 2, 2013, Plaintiff's original motion for attorney fees was terminated pursuant to Plaintiff's amended motion for attorney fees. On December 3, 2013, Defendant filed a response in opposition to Plaintiff's amended motion for attorney fees, arguing that the additional fees sought were unreasonable and excessive. See dkt. #34.


The EAJA states in relevant part that:

[A] court shall award to a prevailing party... fees and other expenses... incurred by that party in any civil action... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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). A motion for attorney's fees must be filed within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(B). The parties do not dispute that Plaintiff qualifies as a "prevailing party"under the EAJA; that final judgment was entered in favor of Plaintiff; and that Plaintiff's fee request was timely filed.

The only dispute in this matter, therefore, is over whether the amount of attorney fees requested is excessive. Defendant characterizes the fee as "excessive" because "[t]he total number of hours expended by Plaintiff's counsel is high given their extensive experience and expertise in Social Security issues, and the straightforward nature of this case." dkt. #34 at 4. Specifically, Defendant asserts that "Plaintiff's request for more than 69 hours, is almost thirty hours more than the high-end of the general range of hours (twenty to forty hours) ordinarily found to be reasonable in routine social security disability matters." Id . Defendant further asserts that Plaintiff's amended motion for attorney fees seeking compensation for the additional hours are "unreasonable and excessive." Id. at 1.

The "standard fee for routine social security cases under the EAJA in the Second Circuit averages around twenty to forty hours." Dabul-Montini v. Astrue, 2011 WL 1541363, at *2 (N.D.N.Y. 2011) (citing Coughlin v. Astrue , 2009 WL 3165744, at *2 (N.D.N.Y. 2009)). "It is not unprecedented to award more than forty hours of fees under the EAJA, " but the Court must find the fee justified by the nature of the case. Dabul-Montini, 2011 WL 1541363 at *2 (citing Kania v. Shalala , 1995 WL 307604, at *2 (W.D.N.Y. 1995)). Moreover, "[w]hen assessing whether to award attorney's fees to a prevailing party, a court has broad discretion to determine whether the amount of time an attorney has expended is reasonable." Coughlin v. Astrue , 2009 WL 3165744, at *2 (N.D.N.Y. 2009) (citing Crudele v. Chater , 1997 WL 198076, at *5 (S.D.N.Y. 1997)).

"The specific facts of each case determine what fee is appropriate." Coughlin , 2009 WL 3165744, at *2 (citing Ferguson v. Apfel , 2000 WL 709018, at *2 (E.D.N.Y. 2000)). Therefore, "attorney's fees in excess of the routine twenty to forty hours will be awarded where the facts of the specific case warrant such an award." Dabul-Montini, 2011 WL 1541363, at *2 (citing Hinton v. Sullivan , 1991 WL 123960, at *5 (S.D.N.Y. 1991); Scott v. Astrue , 474 F.Supp.2d 465, 467 (W.D.N.Y. 2007)). "When deciding what amount is appropriate, the court will not compensate or penalize counsel for her expertise." Coughlin , 2009 WL 3165744, at *2 (citing Laguna v. Secretary Dep't of Health and Human Servs. , 1992 WL 179215, at *4 (E.D.N.Y. 1992)). Courts may "reduce entries if the number of hours spent on a task are excessive or if entries relate to clerical tasks." Coughlin , 2009 WL 3165744, at *2 (citing Greenride v. Barnhart , 2005 WL 357318, at *4 (W.D.N.Y. 2005); Destefano v. Astrue , 2008 WL 623197, at *3 (E.D.N.Y. 2008)). "Moreover, time may be reduced when billing entries are less than precise." Coughlin , 2009 WL 3165744, at *2 (citing Destefano , 2008 WL 623197, at *3 n.5)).

In reviewing attorney fee requests, "the court is not required to scrutinize each action taken or the time spent on it' when determining what is reasonable." Coughlin , 2009 WL 3165744, at *3 (quoting Hogan v. Astrue , 539 F.Supp.2d 680, 683 (W.D.N.Y. 2008) (holding that a reduction of approximately 5% in the total fee requested was appropriate); Kirsch v. Fleet Street, Ltd. , 148 F.3d 149, 173 (2d Cir.1998) (holding that the Court has discretion simply to apply a reasonable percentage reduction "as a practical means of trimming fat from a fee application"); New York State Ass'n for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1146 (2d Cir.1983) (holding that district judge acted within his discretion when he chose to make percentage reductions in response to the defendants' detailed claims that the fee application contained excessive and duplicative hours). Finally, "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley v. Eckerhart , 461 U.S. 424, 434 (1983) (quoting Copeland v. Marshall , 641 F.2d 880, 891 (D.C. Cir. 1980)).

In this case, Plaintiff requests recovery for a total of 85.3 hours, far more than the usual expected in such cases.[1] Plaintiff does not contend that this case involved any complex legal or medical issues requiring a departure from the standard of twenty to forty hours and has not presented evidence to support those larger fees. Instead, the Plaintiff contends that a need to review the record, with which counsel was unfamiliar, led to the expenditure of more hours. Even with this need for additional time, however, the Court notes that the work performed by the two attorneys in this case was at times duplicative, particularly in the drafting of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.