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Wilbur v. Colvin

United States District Court, N.D. New York

June 5, 2015

JAMES A. WILBUR, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER AWARDING ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)

EARL S. HINES, Magistrate Judge.

Before the court is plaintiff's request for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), in the amount of $8, 106.47. (Dkt. No. 18). The Commissioner stipulated that such amount represents a reasonable award for fees, costs, and other expenses (Dkt. No. 18), but recently submitted a letter (Dkt. No. 24) stating that plaintiff's counsel's time records may not have been created and maintained contemporaneously. The Commissioner further cites cases involving contested EAJA fee applications wherein courts concluded that contemporaneous time records are prerequisites. (Dkt. No. 24).

EAJA authorizes courts to award reasonable attorney fees and expenses to successful litigants against the United States. See 28 U.S.C. §§ 2412(d)(1)(A), 2412(d)(2)(A). When, as here, the government stipulates that a requested fee award is reasonable, and the requested fee is not conspicuously excessive in relation to typical awards in similar cases, lack of proof of contemporaneous time records is not fatal to the application. It is, therefore,

ORDERED that the Consent Order for Payment of Attorney Fees Under EAJA (Dkt. No. 18) is GRANTED, and Plaintiff is awarded EAJA fees in the amount of $8, 106.47, in full satisfaction of all claims.

It further ORDERED that Defendant shall make plaintiff the payee on the check. See Astrue v. Ratliff, 560 U.S. 586, 593 (2010). Defendant shall, however, transmit the check to plaintiff's attorney, Howard D. Olinsky, Esq., to enable his enforcement of nonstatutory (contractual and other assignment-based) rights that confer upon him entitlement to payment of such fee.


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