1Neither her motion nor her attorney’s affidavit provides a

total amount sought under the EAJA. The amount stated is the

total provided on the billing itemization.

2Page filed a reply to the Commissioner’s objection without

providing notice and without seeking leave to file a reply. LR

7.1(e)(2). Therefore, the reply was not properly filed and will

not be considered. Page’s counsel chose to ignore the local rule

previously, with the same result.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Michele L. Page

v. Civil No. 08-cv-340-JD

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

After judgment was entered in her favor and her case was

remanded for further administrative proceedings, Michele Page

moved for an award of attorneys’ fees pursuant to the Equal

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). She seeks

fees in the amount of $7,892.50.1 The Commissioner objects on

the ground that the amount sought is excessive.2 

The EAJA permits an eligible prevailing party to recover

fees and other expenses in a civil suit against the United States

unless the government’s position was substantially justified. 28

U.S.C. § 2412(d); Aronov v. Napolitano, 562 F.3d 84, 86 & 88 (1st

Case 1:08-cv-00340-JD Document 22 Filed 06/23/09 Page 1 of 5
2

Cir. 2009). The amount of attorneys’ fees must be reasonable,

based on prevailing market rates, except that the hourly rate is

capped at $125 unless the court finds that the increase in the

cost of living or a special factor justifies a higher rate. §

2412(d)(2)(A). The lodestar method is used to calculate a fee

award to a prevailing party. Gisbrecht v. Barnhart, 535 U.S.

789, 801-02 (2002).

Under the lodestar method, an award is calculated by

multiplying a reasonable hourly rate by the number of hours

productively spent on the case, which amount may be adjusted

further based on other considerations. Hensley v. Eckerhart, 461

U.S. 424, 433-34 (1983). “In crafting its lodestar, the trial

court may adjust the hours claimed to remove time that was

unreasonably, unnecessarily[,] or inefficiently devoted to the

case . . . .” DeJesus Nazario v. Morris Rodriguez, 554 F.3d 196,

207 (1st Cir. 2009). “[A] district court may deem an expenditure

of time unreasonable if the reported hours are excessive,

redundant, or otherwise unnecessary.” Torres-Rivera v. O’NeillCancel, 524 F.3d 331, 336 (1st Cir. 2008) (internal quotation

marks omitted). The party seeking a fee award bears the burden

of providing evidence to support the number of hours expended and

the rates claimed. Hensley, 461 U.S. at 433.

Case 1:08-cv-00340-JD Document 22 Filed 06/23/09 Page 2 of 5
3While experience is an appropriate basis for determining a

reasonable hourly rate, an attorney’s age would not appear to be

relevant to that determination.

4The billing records show 48 hours recorded by the

attorneys, but three hours were voluntarily deducted from that

number.

3

Page was represented by Francis M. Jackson, who was assisted

by his associates, Murrough H. O’Brien and Penny E. Gronbeck. In

his affidavit submitted with the motion for fees, Jackson claims

an hourly rate of $171.25, which is the statutory cap amount

adjusted for the cost of living increase, for himself and for

O’Brien and Gronbeck. He also states that he and O’Brien have

extensive experience in social security law and contends that the

fee is reasonable based on his and his associates’ ages and

experience.3 Page claims 45 hours of attorney time, billed at

$171.25 per hour, and 1.75 hours of paralegal time, billed at

$100 per hour.4

The Commissioner challenges the number of hours claimed,

contending that it is excessive. In particular, the Commissioner

cites the time billed by all three attorneys for reviewing a

straightforward case, twenty-five hours spent preparing Page’s

brief, more than five hours spent reviewing the joint factual

statement prepared by counsel for the Commissioner, eight hours

billed by Jackson for reviewing his associates’ work, and the

Case 1:08-cv-00340-JD Document 22 Filed 06/23/09 Page 3 of 5
5Although the Commissioner also notes billing for 1.5 to 2

hours of time for routine matters, the Commissioner does not ask

to have that time subtracted from the total.

4

time spent on the reply, which was not considered by the court. 

The Commissioner proposes that the number of hours be reduced by

eighteen, subtracting ten hours from the time billed for

preparing the brief, two hours from review of the joint factual

statement, and the six hours billed for the reply brief.5

The Commissioner is correct that Page’s attorneys claimed

more hours than the nature of the work supports. The reductions

in the number of hours proposed by the Commissioner are

reasonable. Therefore, the attorneys’ billable hours are reduced

to thirty. The hourly rate Page’s attorneys claim is the highest

amount allowed by the EAJA. Jackson asserts that his ordinary

hourly rate is considerably higher, and the Commissioner does not

request a reduction in the rate. Therefore, the hourly rate of

$171.25 for the attorneys is deemed reasonable, and the

paralegal’s time is compensated at an hourly rate of $100.

Applying the lodestar calculation, the attorneys’ fees to be

awarded under the EAJA are $5,137.50. The paralegal’s fees are

unchanged and total $175. Page is entitled to an award of

$5,312.50.

Case 1:08-cv-00340-JD Document 22 Filed 06/23/09 Page 4 of 5
5

Conclusion

For the foregoing reasons, the plaintiff’s motion for fees

and expenses (document no. 19) is granted to the extent that

plaintiff is awarded fees in the amount of $5,312.50

 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 23, 2009

cc: Karen B. Fitzmaurice, Esquire

Francis M. Jackson, Esquire

T. David Plourde, Esquire

Case 1:08-cv-00340-JD Document 22 Filed 06/23/09 Page 5 of 5