Hazzard v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
RONALD H.,
Plaintiff,
v. 	6:25-cv-0433
(GTS/PJE)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY & DISABILITY LAW 	IDA COMERFORD, ESQ.
Counsel for Plaintiff
6000 North Bailey Avenue, Suite 1a
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION 	KATHRYN POLLACK, ESQ.
Counsel for Commissioner
6401 Security Boulevard
Baltimore, MD 21235
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this social security action filed by Ronald H. (“Plaintiff”)
against the Commissioner of Social Security (“Defendant” or “Commissioner”), is Plaintiff’s
motion for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”). (Dkt. Nos. 22, 23.) For the reasons stated below, Plaintiff’s EAJA motion is denied.
I. 	RELEVANT BACKGROUND
A. 	Relevant Procedural History
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Plaintiff filed the Complaint in this action on April 7, 2025. (Dkt. No. 1.) Following the
submission of Plaintiff’s motion for judgment on the pleadings, the parties filed a stipulation for
remand on January 30, 2026. (Dkt. No. 17.) The Court approved that stipulation on February 5,
2026, and ordered remand to the Commissioner for further administrative proceedings. (Dkt.
No. 18.) Judgment was issued on that same date. (Dkt. No. 19.)
B. 	Parties’ Briefing on Plaintiff’s Motion
Generally, in the EAJA motion, Plaintiff’s counsel argues the following: (a) although the
EAJA motion was not timely filed, the Court should apply equitable tolling to excuse that
untimeliness based on the combination of an error by the law firm, the existence of ongoing
settlement negotiations, and the “confusion and uncertainty” following the departure of Attorney
Justin Goldstein from Hiller Comerford and the subsequent need to file “dozens of notices and
letters across multiple jurisdictions” removing him from those cases; (b) it is the prevailing party
in this action; (c) Plaintiff meets the statutory asset test; (d) the position taken by the
Commissioner in the underlying action was not substantially justified; and (e) the fee amount
requested is reasonable. (Dkt. No. 23, Attach. 3.)
In response, the Commissioner stated that he takes no position on whether the standard
for equitable tolling has been met.
II. 	LEGAL STANDARDS
The EAJA provides, in relevant part, as follows:
[A] court shall award to a prevailing party ... fees and other expenses ...
incurred by that party in a civil action, including proceedings for judicial
review of an agency, 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.
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28 U.S.C. § 2412(d)(1)(A) (2013). To prevail on a motion for attorney’s fees under the EAJA, a
plaintiff must demonstrate the following: (1) her motion is timely; (2) she is the prevailing party;
(3) she is eligible to receive an award; (4) an itemized statement from any attorney appearing on
her behalf that illustrates the rate at which the attorney's proposed fees were computed; and (5)
the position of the United States was not substantially justified. Smith ex rel. D.R. v. Astrue, 10–
CV–0053, 2012 WL 3683538, at *1 (N.D.N.Y. Aug. 24, 2012) (citing 28 U.S.C. §
2412[d][1][B]).
Substantial justification operates under a burden-shifting framework. The plaintiff must
allege that the defendant’s underlying position was not substantially justified.1 See Mills v.
Colvin, 11–CV–0955, 2013 WL 1499606, at *1 (N.D.N.Y. Apr. 11, 2013) (citing 28 U.S.C. §
2412[d][1][B]). Once the plaintiff has done so, the burden shifts to the defendant to establish
that its position was substantially justified. See Commodity Futures Trading Comm'n v. Dunn,
169 F.3d 785, 786 (2d Cir.1999). In order to determine whether the defendant was
“‘substantially justified,’ courts are to apply a standard of reasonableness.” Green v. Bowen, 877
F.2d 204, 207 (2d Cir.1989) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541,
101 L.Ed.2d 490 [1988]). Even though the substantial justification standard “should not be read
to raise a presumption that the [d]efendant’s position was not justified, simply because it lost the
case,” Cohen v. Bowen, 837 F.2d 582, 585 (2d Cir.1988) (internal quotation marks and citations
omitted), the defendant has the burden of proof on the substantial justification issue and a “strong
showing” is required to satisfy this burden. Envtl. Def. Fund, Inc. v. Watt, 722 F.2d 1081, 1085
(2d Cir.1983). The defendant must show that its action was justified in law and fact. See
Rosado v. Bowen, 823 F.2d 40, 42 (2d Cir.1987) (internal quotation marks and citations omitted).
The substantially justified standard “is a middle ground between the automatic awarding of fees
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to a prevailing party, and the allowance of a fee award only where the [d]efendant[‘s] [action
was] arbitrary and frivolous.” Mills, 2013 WL 1499606, at *1 (quoting Cohen, 837 F.2d at 585
n. 4).
The EAJA provides for the allowance of “reasonable attorney’s fees.” 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 rate.”
Healy v. Leavitt, 485 F.3d 63, 69 (2d Cir.2007) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433, 103 S.Ct. 1933, 76 L.Ed.2d 40 [1983]). The plaintiff has the burden of establishing to the
court’s satisfaction the reasonableness of the hours expended and rates charged. See Hensley,
461 U.S. at 433. With respect to the hours expended, “[d]istrict courts in the Second Circuit
have held that, on average, an attorney spends twenty to forty hours on routine social security
cases.” Mills, 2013 WL 1499606, at *3 (quoting Coughlin v. Astrue, 06–CV–0497, 2009 WL
3165744, at *2 [N.D.N.Y. Sept. 28, 2009]). With respect to the rates charged, Section
2412(d)(2)(A) dictates that “attorney fees shall not be awarded in excess of $125 per hour unless
the court determines that an increase in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved, justified a higher fee.” 28 U.S.C.
§ 2412(d)(2)(A).
III. 	DISCUSSION
After careful consideration, the Court answers the question of whether Plaintiff’s motion
for EAJA fees should be granted in the negative.
Pursuant to the EAJA, “[a] party seeking an award of fees and other expenses shall,
within thirty days of final judgment in this action, submit to the court an application for fees and
other expenses which shows that the party is a prevailing party and is eligible to receive an
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award under this subsection, and the amount sought.” 28 U.S.C. § 2412(d)(1)(B). “Final
judgment” is defined as “a judgment that is final and not appealable.” 28 U.S.C. §
2412(d)(2)(G). In this case, Plaintiff’s counsel admits that the EAJA motion was untimely
filed,1 but argues that extraordinary circumstances warrant the application of equitable tolling.
“A litigant seeking equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Bachand v. Saul, 778 F. App’x 74, 75 (2d Cir. 2019) (quoting Mottahedah v.
United States, 794 F.3d 347, 352 [2d Cir. 2015]). “‘Generally speaking, the Court of Appeals for
the Second Circuit sets a high bar to deem circumstances sufficiently extraordinary to warrant
equitable tolling,’” even for short delays. Tami P. v. Comm’r of Soc. Sec., 21-CV-6313, 2024 WL
1363679, at *2 (W.D.N.Y. Apr. 1, 2024) (quoting Robert Lee C. v. Saul, 20-CV-6621, 2022 WL
6769001, at *2 [W.D.N.Y. Oct. 11, 2022]). Circumstances such as “press of business,”
“procedural oversight,” “ordinary attorney neglect,” “computer issues,” and “ongoing settlement
negotiations” have all been deemed to not meet this demanding standard. See Tami P., 2024 WL
1363679, at *2 (citing Robert Lee C., 2024 WL 1363679, at *2; Charles v. Colvin, 13-CV-3432,
2015 WL 403239, at *1 [E.D.N.Y. Jan. 29, 2015]; Hooper v. Berryhill, 15-CV-6646, 2017 WL
927843, at *4 [S.D.N.Y. Mar. 8, 2017]). “The Supreme Court has held that ‘a garden variety
claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling.’” Bachand, 778 F. App’x at 75 (quoting Holland v.
Florida, 560 U.S. 631, 651-52 [2010]).
1 	The deadline for filing the EAJA motion was May 6, 2026, which is 30 days after the
Judgment became no longer appealable. Plaintiff’s counsel did not file the EAJA motion until
May 18, 2026.
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Plaintiff’s counsel’s own affidavit indicates that correspondence with the Office of
General Counsel (“OGC”) resulted in an OGC attorney notifying her on May 4, 2026, that the
Commissioner would not be able to engage in negotiations regarding attorney’s fees in this case
unless either Attorney Goldstein consented or was removed from the docket, as he was at that
time the counsel of record for Plaintiff. (Dkt. No. 23, Attach. 1, at ¶ 12.) She then states that,
following that conversation, Hiller Comerford “has begun filing letter and notices seeking to
remove Mr. Goldstein as counsel where he remains entered on behalf of a Hiller Comerford
client,” which she estimates to be “over one hundred cases, spread across at least five
jurisdictions, all with different rules governing removal of counsel from the docket.” (Dkt. No.
23, Attach. 1, at ¶ 13.)
However, regardless of how many cases from which Attorney Goldstein needed to be
removed, the one that matters here is this case. There is no indication that Attorney Goldstein
needed to be removed from the docket in all of Hiller Comerford’s cases in order for negotiations
to proceed as to this case. Plaintiff’s counsel was clearly cognizant of having a time limit for
filing a motion pursuant to the EAJA, given that she attempted to engage in settlement
negotiations with OGC as early as April 30, 2026. 	(Dkt. No. 23, Attach. 1, at ¶ 11.) There is no
explanation as to why, despite being informed on May 4, 2026, that the situation with Attorney
Goldstein needed to be addressed before OGC could negotiate on the matter of attorney’s fees,
Plaintiff’s counsel seemingly made no attempt to have Attorney Goldstein removed from this
case until May 8, 2026, after it realized the EAJA motion deadline had already passed. (Dkt. No.
21.) This delay is especially baffling given that Plaintiff’s counsel acknowledges in the letter
filed to the Court seeking to remove Attorney Goldstein that, in a situation where the same law
firm continues to represent the party, the Local Rules require only that the new attorney from the
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same law firm enter an appearance, and that “[w]here two attorneys from the same law firm
represent a party, and one attorney leaves the firm, only a letter is required to be filed on the
docket indicating that the attorney has left the firm and should be removed from the docket,” a
process that would not reasonably take four days.2 (Id.) Moreover, although Plaintiff’s counsel
relies on Hiller Comerford’s actions of filing similar letters or notices in other cases during that
relevant week as a reason for missing the deadline, there is no indication as to how many of the
other cases wherein Attorney Goldstein needed to be removed had pending deadlines that
necessitated Attorney Goldstein’s prompt removal such that priority could not have been given to
attending to the deadline in this case (of which Plaintiff’s counsel should have had a reasonable
awareness was approaching soon based on the information presented).
The fact of filing notices to remove Attorney Goldstein from many other cases around the
same time does not in any way excuse what is, at its core, a simple negligent failure to calendar
or monitor a deadline. The fact that a law firm might experience an influx of work does not
relieve it of its obligation to keep apprised of and comply with deadlines. No matter how
Plaintiff’s counsel attempts to frame the circumstances, she admits that the basis for failing to
file a timely motion was that “the EAJA deadline was not properly calendared and flagged
according to Hiller Comerford’s internal procedures.” (Dkt. No. 23, Attach. 1, at ¶ 14.) Given
that the Court’s Judgment was entered on February 5, 2026 (which means that the Order became
no longer appealable as of April 6, 2026), the Court finds it difficult to understand why the
2 	There is also no explanation as to why Plaintiff’s counsel did not file its EAJA motion
until May 18, 2026, when Attorney Comerford states in her declaration that the error in missing
the deadline was discovered on May 7, 2026, other than waiting to hear whether the
Commissioner consented to the filing of an untimely motion. (Dkt. No. 23, Attach. 1, at ¶ 15.)
However, waiting ten days in the hope of receiving the Commissioner’s consent is not
representative of diligence, especially given that it is this Court, not the Commissioner, that has
the responsibility of determining whether equitable tolling is warranted.
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motion deadline would not have been calendared around that time, which notably was
approximately a month prior to when Plaintiff’s counsel learned of the need to remove Attorney
Goldstein from the cases of his former clients that remained with Hiller Comerford. Moreover,
as discussed above, this is not a situation in which Plaintiff’s counsel had no awareness of the
need to address this matter; her own declaration and exhibits to the motion document that
individuals at Hiller Comerford were in fact aware that the time period to file an EAJA motion
was running, but, in the end, they simply missed the deadline. The fact that they either did not
calendar that deadline (or did not correctly calendar it) or their system failed to flag it at the
relevant time does not constitute extraordinary circumstances, and, as was discussed above, there
is some indication that Plaintiff’s counsel did not act with reasonable diligence in other respects
related to filing the motion.
For the above reasons, the Court finds that the EAJA motion is untimely and equitable
tolling is not warranted in this case. Plaintiff’s motion is therefore denied.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff’s motion for attorney’s fees pursuant to the EAJA (Dkt. Nos.
22, 23) is DENIED.
Dated: October 8, 2026
Syracuse, New York
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