     10-2437-cv
     Vincent v. Comm’r of Social Security


 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3

 4                                August Term 2010

 5          (Argued: May 3, 2011                Decided: July 8, 2011)

 6                             Docket No. 10-2437-cv

 7   -----------------------------------------------------x

 8   LORETTA VINCENT,
 9
10               Plaintiff - Appellant,
11
12                           -- v. --
13
14   COMMISSIONER OF SOCIAL SECURITY,
15
16               Defendant - Appellee.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     WALKER, CALABRESI, and WESLEY, Circuit Judges.

21         Appeal from an order of the United States District Court for

22   the Northern District of New York (Victor E. Bianchini,

23   Magistrate Judge) reducing by two-thirds the attorney’s fees

24   awarded following a successful appeal from the administrative

25   denial of an application for Social Security disability benefits.

26   We hold that the failure of claimant’s counsel to develop the

27   administrative record as to issues collateral to the disability

28   determination does not constitute a “special circumstance”


                                            1
 1   warranting a fee reduction under the Equal Access to Justice Act.

 2   We also hold that the district court abused its discretion in

 3   reducing the fee award based on its sua sponte critique of

 4   counsel’s billing records and its assessment that the time billed

 5   was excessive.

 6        REVERSED and REMANDED.

 7                                  MARK CURLEY, New York, NY, for
 8                                  Plaintiff-Appellant.
 9
10                                  VERNON NORWOOD, Special Assistant
11                                  U.S. Attorney, Social Security
12                                  Administration (Richard S.
13                                  Hartunian, United States Attorney,
14                                  Northern District of New York,
15                                  Stephen P. Conte, Regional Chief
16                                  Counsel, Social Security
17                                  Administration, on the brief), New
18                                  York, NY for Defendant-Appellee.
19
20                                  Catherine M. Callery, Louise M.
21                                  Tarantino, Empire Justice Center,
22                                  Rochester, NY, for Amicus Curiae
23                                  Empire Justice Center.
24
25   JOHN M. WALKER, JR., Circuit Judge:

26        Plaintiff-Appellant Loretta Vincent appeals from an order of

27   the United States District Court for the Northern District of New

28   York (Victor E. Bianchini, Magistrate Judge) that reduced by two-

29   thirds the attorney’s fee award she requested for successfully

30   appealing from the administrative denial of her application for

31   disability benefits.   The district court, attributing gaps in the

32   administrative record to Vincent’s counsel, concluded that this

33   alleged deficiency constituted “special circumstances” justifying


                                      2
 1   a reduction in the attorney’s fees awarded under the Equal Access

 2   to Justice Act.    We hold that the failure of a claimant’s

 3   attorney to develop the administrative record on issues

 4   collateral to the disability determination does not constitute a

 5   “special circumstance” warranting a reduction in attorney’s fees.

 6   We also hold that the district court abused its discretion in

 7   reducing the fee award based on its sua sponte critique of

 8   counsel’s billing records and its conclusion that the time billed

 9   was excessive because no novel issues were raised.

10                               BACKGROUND

11           Attorney Mark Schneider represented Vincent in her

12   successful appeal from the administrative denial of her claim for

13   disability benefits.    His efforts at getting paid for those

14   services have been less successful.      After ruling in Vincent’s

15   favor on the merits, the district court chided Schneider for

16   apparent deficiencies in his representation and awarded only one-

17   third of the amount requested in Vincent’s motion for attorney’s

18   fees.    Vincent now appeals from that order.

19           Vincent applied to the Social Security Administration for

20   disability insurance benefits on November 23, 2005.     After an

21   initial denial, Vincent requested a hearing and appeared before

22   Administrative Law Judge (“ALJ”) J. Lawson Brown, who rejected

23   the application on December 20, 2007.     On August 21, 2008, the

24   Social Security Appeals Council (“Appeals Council”) denied


                                        3
 1   Vincent’s request for review, making the ALJ’s decision a final

 2   order of the Commissioner of Social Security (“Commissioner”).

 3   On September 9, 2008, Vincent filed a complaint in the district

 4   court challenging the Commissioner’s final order.    Schneider

 5   represented Vincent at every step of this process.

 6        Vincent based her benefits application on a claim that a

 7   work-related back injury had rendered her unable to work as of

 8   August 2, 2004.   To determine whether or not Vincent was disabled

 9   as defined by the Social Security Act, the ALJ engaged in the

10   five-step sequential analysis prescribed by regulations.    See 20

11   C.F.R. §§ 404.1520, 416.920.   In finding her not to be disabled,

12   the ALJ put significant weight on his negative assessment of

13   Vincent’s credibility.   While acknowledging that Vincent’s

14   “medically determinable impairment could reasonably be expected

15   to produce the alleged symptoms,” the ALJ found that her

16   “statements concerning the intensity, persistence and limiting

17   effects of these symptoms are not entirely credible.”   Vincent’s

18   disability report listed ten years of full-time factory

19   employment from 1994 to 2004, but her earnings records reflected

20   less than three years of work in that period.   Vincent’s

21   statements to the Social Security Administration therefore

22   suggested, according to the ALJ, “that she tends to exaggerate.”

23   The ALJ’s review of Vincent’s medical records, including a

24   doctor’s recommendation, unheeded by Vincent, that she attend


                                      4
 1   physical therapy or a “back school” program, further “call[ed]

 2   into question [Vincent’s] credibility.”   The ALJ also observed

 3   that Vincent’s assertion of having been enrolled in special

 4   education through tenth grade was not “corroborated by the

 5   records” of the school district, which was unable to locate any

 6   special education records in Vincent’s name.   Having discounted

 7   Vincent’s own account of her impairment based on these

 8   credibility concerns, the ALJ concluded that she had the residual

 9   functional capacity to perform light work and was not disabled.

10   The Appeals Council denied review.

11        On March 30, 2010, the district court reversed and remanded

12   because the ALJ failed to develop the record as to several

13   issues.   First, the ALJ could not rely on Vincent’s alleged

14   noncompliance with prescribed treatment as a basis for denying

15   benefits, or even for an adverse credibility finding, without

16   allowing her to explain why she did not follow any such

17   treatment.   The ALJ also erred by relying, without further

18   inquiry, on the apparent exaggeration in Vincent’s work history

19   (which could have resulted from a data entry error) and on the

20   absence of corroboration for Vincent’s special education history

21   (which may have been attributable to the use of Vincent’s married

22   name in the records request).   Finally, the district court found

23   that the ALJ should have considered the effect of Vincent’s

24   obesity in assessing whether she was disabled.   In light of these


                                      5
 1   gaps in the record, the district court remanded for further

 2   administrative proceedings.

 3        The district court did not limit its criticisms to the ALJ,

 4   however.    It also blamed Schneider, who represented Vincent at

 5   the administrative hearing: “the underdeveloped issues clearly

 6   could have, and should have, been addressed by [Vincent’s]

 7   counsel at the administrative stage” as part of his “ethical

 8   obligation to act with reasonable diligence.”    Once the ALJ had

 9   denied Vincent’s applications, Schneider again faltered – in the

10   district court’s view – by waiving the filing of a brief when he

11   requested Appeals Council review.     Questioning whether

12   Schneider’s alleged lapses constituted “a strategic and

13   deliberate choice,” the district court anticipated examining his

14   conduct further when Schneider applied for attorney’s fees.

15        On April 27, 2010, Vincent moved the district court for an

16   award of $8,272.00 in attorney’s fees.    Vincent sought fees for

17   47 hours of Schneider’s time: 24.1 hours spent working on the

18   appeal to the district court; 13.9 hours on the fee petition and

19   brief; and 9.0 hours on the reply brief and affidavit for the fee

20   petition.   In a May 24, 2010 order, the district court granted

21   the motion in part and denied it in part, reducing the requested

22   fee award by two-thirds based on a number of purported

23   deficiencies.   The district court held that Schneider’s failure

24   to develop the record constituted “special circumstances” that,


                                       6
 1   under the Equal Access to Justice Act, would render a full award

 2   “unjust.”    See 28 U.S.C. § 2412(d).   In addition, the district

 3   court viewed the length of time Schneider billed for preparing

 4   the fee application as “clearly excessive and unreasonable.”        The

 5   district court also expressed concern that Schneider’s billing

 6   records provided only “conclusory explanations” for “several

 7   lengthy increments of time” and improperly intermingled legal and

 8   clerical tasks.   To account for these flaws, the district court

 9   awarded only $2,757.33 in attorney’s fees, one-third of the

10   amount requested.   Vincent now appeals from this order.

11                              DISCUSSION

12        The Equal Access to Justice Act (“EAJA”) provides that “a

13   court shall award to a prevailing party . . . fees and other

14   expenses . . . incurred by that party in any civil action (other

15   than cases sounding in tort), including proceedings for judicial

16   review of agency action, brought by or against the United States

17   . . . unless the court finds that the position of the United

18   States was substantially justified or that special circumstances

19   make an award unjust.”   28 U.S.C. § 2412(d)(1)(A).   It is

20   undisputed that Vincent prevailed before the district court and

21   that the position of the United States was not substantially

22   justified.   In assessing Vincent’s entitlement to fees, however,

23   the district court concluded that the deficiencies referred to

24   above were “special circumstances” justifying a substantial


                                       7
 1   reduction in the fees awarded.   Our review of that decision “is

 2   narrow; we will only reverse if we find the court abused its

 3   discretion.”   United States v. 27.09 Acres of Land, 43 F.3d 769,

 4   772 (2d Cir. 1994).   A district court abuses its discretion “when

 5   (1) its decision rests on an error of law (such as application of

 6   the wrong legal principle) or a clearly erroneous factual

 7   finding, or (2) its decision – though not necessarily the product

 8   of a legal error or a clearly erroneous factual finding – cannot

 9   be located within the range of permissible decisions.”   In re

10   Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir. 2005)

11   (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.

12   2001)).

13        Vincent argues that the district court abused its discretion

14   in denying the full amount of fees requested in her motion.    She

15   contends that Schneider’s representation was not deficient and

16   therefore cannot constitute “special circumstances” rendering a

17   full award unjust.    She further argues that the time billed on

18   the fee application was appropriate because a novel issue was

19   raised, and that the district court, by evaluating the billing

20   entries sua sponte, improperly denied Schneider the opportunity

21   to respond to its concerns.   The Commissioner responds that the

22   district court acted within its discretion and asks us to affirm.

23                                    I.

24        The EAJA’s “special circumstances” exception is a “safety

25   valve” that gives “the court discretion to deny awards where

                                       8
 1   equitable considerations dictate an award should not be made.”

 2   Scarborough v. Principi, 541 U.S. 401, 422-23 (2004) (quoting

 3   H.R. Rep. No. 96-1418, at 11 (1980)).   The contours of that

 4   safety valve are indistinct.   The Second Circuit has spoken only

 5   twice in published opinions to the question of what constitutes

 6   “special circumstances [that] make an award unjust,” and in

 7   neither case did it address whether – or to what extent –

 8   deficiencies in counsel’s performance may justify a denial or

 9   reduction in EAJA fees.   See Oguachuba v. INS, 706 F.2d 93 (2d

10   Cir. 1983); United States v. 27.09 Acres of Land, 43 F.3d 769 (2d

11   Cir. 1994).   With those decisions as our baseline, we must decide

12   whether the district court abused its discretion in applying the

13   “special circumstances” exception in this case.

14        In Oguachuba, we affirmed the district court’s denial of

15   attorney’s fees under the EAJA where the petitioner’s own

16   conceded history of repeated and flagrant misconduct caused the

17   improper incarceration that he successfully challenged.   John

18   Oguachuba, a Nigerian citizen, was granted a writ of habeas

19   corpus based on a violation by the Immigration and Naturalization

20   Service (“INS”) of a statutory six-month limit on the detention

21   of any alien under final order of deportation.    Oguachuba, 706

22   F.2d at 96.   Oguachuba then sought attorney’s fees under the EAJA

23   as the prevailing party in that action.   Id. at 96-97.

24   Oguachuba’s history of misconduct was little short of

25   extraordinary:   after overstaying a student visa, Oguachuba

                                      9
 1   repeatedly flouted a deportation order by lying to INS officials,

 2   fleeing INS custody, delaying the procurement of travel documents

 3   from the Nigerian consulate, and flying back to New York

 4   immediately after having been deported to Nigeria.    Id. at 94-96.

 5   Oguachuba’s incarceration exceeded the six-month limit only

 6   because the “recalcitrance of Nigerian officials” prevented INS

 7   officials from obtaining the travel documents necessary to re-

 8   deport him.    Id. at 96.   We held that “Oguachuba’s extraordinary

 9   persistence in evading the lawful efforts of the INS to deport

10   him to Nigeria, his flagrant contempt for United States law and

11   the fact that his own decision not to acquiesce in deportation

12   caused his incarceration constitute the ‘special circumstances’

13   which make it inequitable to award him attorneys’ fees under the

14   EAJA.”   Id. at 94.

15        We have also affirmed the denial of attorney’s fees under

16   the EAJA for a party who played an only marginal role in the

17   litigation.    The attorney’s fees requested in 27.09 Acres of Land

18   related to “a discrete early phase of the litigation” in which

19   the claimant “achieved nothing but its own intervention.”    43

20   F.3d at 771.   The claimant’s “efforts in the later, productive

21   phase of the litigation were marginal, duplicative and

22   unnecessary because of the laboring oar taken by parties whose

23   fees are not recoverable under EAJA.”    Id.   Because “the claim of

24   the prevailing parties rest[ed] largely on a result to which the

25   claimant made no contribution,” we held that “[g]eneral equitable

                                       10
 1   principles support the district court’s finding that an award of

 2   fees would have been unjust.”   Id. at 773-75.

 3        A prevailing party can therefore be denied attorney’s fees

 4   under the EAJA for “special circumstances” when his own

 5   misconduct created the circumstances that led to the litigation,

 6   see Oguachaba, 706 F.2d at 94, and when that party’s

 7   contributions to the litigation’s success were “marginal,

 8   duplicative and unnecessary,” see 27.09 Acres, 43 F.3d at 771.

 9   These two examples of “special circumstances,” while

10   illustrative, do not define the exception.   Indeed, if the

11   “special circumstances” exception is to function as an equitable

12   “safety valve,” its contours can emerge only on a case-by-case

13   basis.

14        When the exception is invoked in the context of the adequacy

15   of counsel’s representation, however, we think greater clarity is

16   needed if only because counsel must know the parameters of their

17   responsibilities.   The EAJA’s fee-shifting provision is meant to

18   reduce the “economic deterrents to contesting governmental

19   action” and “the disparity between the resources and expertise of

20   . . . individuals and their government.”   H.R. Rep. No. 96-1418,

21   at 5-6 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4984.     The

22   EAJA provides access to justice by encouraging access to counsel,

23   which not only ensures “the thoughtful presentation and

24   consideration of opposing views,” but also assists the government

25   in “refining and formulating public policy.”     Id. at 10,

                                     11
 1   reprinted in 1980 U.S.C.C.A.N. at 4988.    That goal is not

 2   advanced if an indeterminate standard is applied to reduce or

 3   deny a fee award based on alleged deficiencies in representation.

 4   “[I]t is common sense that increasing the risk that an attorney

 5   will not receive a fee award will inevitably decrease the

 6   willingness of attorneys to undertake representation in these

 7   kinds of cases.”   Astrue v. Ratliff, 130 S. Ct. 2521, 2531 (2010)

 8   (Sotomayor, J., concurring).

 9        Clarity is of heightened importance in the context of Social

10   Security appeals, which predominate among the cases in which EAJA

11   awards are made.   Social Security adjudications represent a

12   unique variant from the traditional model of adversarial

13   litigation.   “Social Security disability determinations are

14   investigatory, or inquisitorial, rather than adversarial.”     Moran

15   v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation

16   marks omitted).    The duty of the ALJ, unlike that of a judge at

17   trial, is to “investigate and develop the facts and develop the

18   arguments both for and against the granting of benefits.”     Butts

19   v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (quoting Seavey v.

20   Barnhart, 276 F.3d 1, 8 (1st Cir. 2001)), reh’g granted in part

21   and denied in part, 416 F.3d 101 (2d Cir. 2005).     Still, counsel

22   is not relieved of the duty to provide competent representation,

23   including the obligation “to assist the claimant in bringing to

24   [the ALJ’s] attention everything that shows that the claimant is

25   disabled.”    See 20 C.F.R. § 404.1740(b)(1).   Because of the ALJ’s

                                      12
 1   duty to investigate, if counsel’s entitlement to fees is

 2   questioned due to an undeveloped record, it must be clear that

 3   counsel bore primary responsibility for those deficiencies before

 4   the fee recovery is reduced.   That was the case in Bryant v.

 5   Apfel, 37 F. Supp. 2d 210, 213 (E.D.N.Y. 1999), in which EAJA

 6   fees were denied to a prevailing plaintiff whose attorney’s

 7   failure to “seek or produce critical medical records from the

 8   period of plaintiff’s claimed disability . . . made it impossible

 9   to determine whether plaintiff was, in fact, entitled to

10   disability benefits.”

11        Those are not, however, the facts in this case.    The

12   district court purports to follow Bryant, but in reality goes

13   beyond it.    Unlike counsel in Bryant, Schneider fulfilled his

14   obligation to present evidence establishing Vincent’s disability.

15   The denial of benefits at the administrative level was based not

16   on the absence of such evidence, but upon the ALJ’s refusal to

17   credit it.    The deficiencies in the record that the district

18   court cited all relate to the ALJ’s negative assessment of

19   Vincent’s credibility.   In the circumstances of this case, in

20   which the ALJ gave Vincent no notice of his credibility concerns,

21   it was the ALJ’s responsibility to develop the facts related to

22   this collateral issue.   For example, the ALJ cited Vincent’s

23   noncompliance with treatment recommendations without having

24   raised the issue at the hearing or otherwise allowing Vincent to

25   address it.   The ALJ also relied on the discrepancy between

                                      13
 1   Vincent’s earnings record – which showed less than three years of

 2   employment – and a form she submitted listing ten years’ full-

 3   time factory employment as evidence of her tendency to

 4   exaggerate.   Again, however, the ALJ never questioned Vincent

 5   about the inconsistency or flagged it as a potential credibility

 6   concern.

 7        The district court erred in concluding that Schneider shared

 8   responsibility with the ALJ for these omissions.   In the district

 9   court’s view, Schneider should have identified the discrepancy in

10   Vincent’s work history and preemptively addressed it, and also

11   should have developed the record to explain Vincent’s

12   noncompliance with treatment recommendations.   The district court

13   demanded too much of counsel.   If we endorsed the district

14   court’s position, counsel would have to anticipate and refute all

15   conceivable credibility issues to be assured recovery of

16   attorney’s fees after prevailing on appeal.   This is not, nor

17   should it be, the bar against which representation in Social

18   Security matters is assessed for purposes of awarding EAJA fees.

19   Although refuting potential credibility questions before they

20   arise and without notice as to their potential significance may

21   be an effective strategy, it could also generate unnecessary

22   costs in a context where efficiency and economy are at a premium.

23   Counsel’s failure to anticipate collateral issues thus cannot

24   constitute “special circumstances” justifying a denial or

25   reduction in attorney’s fees on appeal.   The equitable “special

                                     14
 1   circumstances” exception, which applies only when an attorney’s

 2   fee award would be “unjust,” is not so broad.   Where a plaintiff

 3   prevails in a Social Security appeal by winning remand to fill

 4   gaps in the record, “special circumstances” do not justify a

 5   reduction in or denial of attorney’s fees if plaintiff’s counsel

 6   does not reasonably bear responsibility for the evidentiary

 7   deficit.

 8        The district court’s approach does not accord with the

 9   realities of representation in the Social Security disability

10   context.   The limited resources of clients and legal service

11   providers demand that counsel act with expediency.   It would be

12   unreasonable to insist that counsel pursue issues collateral to

13   the medical disability determination without any notice from the

14   ALJ that such issues are likely material to the outcome.   This is

15   particularly true in light of the ALJ’s independent duty to

16   develop the record.

17        The deficits in the record caused by the ALJ’s failure to

18   investigate and to notify counsel of his concerns are

19   illustrative.   Schneider explained in an affidavit that the

20   report that erroneously listed Vincent’s ten-year work history

21   was prepared by a Social Security Administration employee, not

22   Vincent, and therefore could not have been probative of her

23   credibility.    Schneider therefore had no reason, absent notice

24   from the ALJ, to devote any resources to addressing what appeared

25   to be a nonexistent credibility issue.

                                      15
 1          The district court further faulted Schneider for declining

 2   to submit a brief to the Appeals Council.   Granting an unreduced

 3   attorney’s fee award would, in the district court’s view,

 4   effectively reward Schneider for “saving” his arguments for the

 5   district court.   However, the decision not to file a brief before

 6   the Appeals Council fell well within Schneider’s tactical

 7   discretion.    The regulations “permit - but do not require - the

 8   filing of a brief with the Council (even when the Council grants

 9   review).”   Sims v. Apfel, 530 U.S. 103, 111 (2000); see also 20

10   C.F.R. § 404.975 (“Upon request, the Appeals Council shall give

11   you and all other parties a reasonable opportunity to file briefs

12   or other written statements about the facts and law relevant to

13   the case.”).   The Supreme Court held in Sims that Social Security

14   claimants “who exhaust administrative remedies need not also

15   exhaust issues in a request for review by the Appeals Council in

16   order to preserve judicial review of those issues.”   530 U.S. at

17   112.   The Supreme Court declined to impose an exhaustion

18   requirement due to the non-adversarial nature of Social Security

19   proceedings and appeals, in which “[t]he Council, not the

20   claimant, has primary responsibility for identifying and

21   developing the issues.”   Id.   Given that neither the regulations

22   nor the exhaustion rules require the filing of a brief before the

23   Appeals Council, the decision not to do so is not a “special

24   circumstance” making a full award of attorney’s fees unjust.

25

                                      16
 1        Counsel representing Social Security claimants cannot be

 2   penalized with a reduction in attorney’s fees for failing to

 3   address issues collateral to the disability determination as to

 4   which counsel had no notice.   Thus, responsibility for the gaps

 5   in Vincent’s administrative record fell exclusively on the ALJ.

 6   Schneider’s representation was in no way deficient; to the

 7   contrary, it appears to have been more than adequate.   The

 8   district court therefore abused its discretion in concluding that

 9   “special circumstances” warranted a reduction in the EAJA award

10   in this case.

11                                   II.

12        The district court cited two other reasons to justify its

13   sharp reduction in the attorney’s fee award: the length of time

14   Schneider billed for the application for attorney’s fees, and the

15   quality of Schneider’s billing records.   Nearly half of the 47

16   hours that Schneider billed were for his work on the EAJA fee

17   motion and reply, a figure the district court concluded was

18   “clearly excessive and unreasonable.”   The district court also

19   criticized Schneider’s billing entries, which it felt were

20   insufficiently detailed and appeared to merge clerical tasks with

21   legal ones.

22        The district court enjoys broad discretion in determining

23   the amount of a fee award.   See Hensley v. Eckerhart, 461 U.S.

24   424, 437 (1983).   Such discretion “is appropriate in view of the

25   district court’s superior understanding of the litigation and the

                                     17
 1   desirability of avoiding frequent appellate review of what

 2   essentially are factual matters.”     Id.; see also Comm’r, INS v.

 3   Jean, 496 U.S. 154, 161 (1990) (applying Hensley standard to EAJA

 4   fee determination once party has met EAJA’s eligibility

 5   requirements).   When “the documentation of hours is inadequate,”

 6   the district court “may reduce the award accordingly” but must

 7   “provide a concise but clear explanation of its reasons for the

 8   fee award.”   Hensley, 461 U.S. at 433, 437.

 9        Although we respect the district court’s ample discretion to

10   reduce a fee award, deference is not warranted when the reduction

11   rests on an erroneous premise.   Vincent justified the 22.9 hours

12   Schneider billed for the EAJA application and reply as

13   necessitated by the novelty of the district court’s construction

14   of the “special circumstances” exception.    The district court, by

15   contrast, found that Vincent’s case “did not involve issues of a

16   particularly novel or complex nature.”    Vincent is correct that

17   this case presented a novel question; indeed, we have not

18   identified any precedents in which EAJA fees were reduced under

19   comparable reasoning.   It is therefore unsurprising that the EAJA

20   briefing here would demand more attention and time than a

21   standard fee application.   Furthermore, by rebuking Schneider in

22   the remand order, which preceded Vincent’s fee motion, the

23   district court alerted Schneider that it viewed his entitlement

24   to fees with skepticism.    That alone made this an atypical EAJA

25   application, one that required Schneider to concentrate more

                                      18
 1   effort than usual in convincing the district court that he had

 2   earned the fees requested.   The district court therefore appears

 3   to have underappreciated the degree of effort warranted by the

 4   EAJA motion.

 5        We also question the district court’s sua sponte decision to

 6   address the quality of Schneider’s billing records without

 7   allowing him to respond to its concerns.   The district court

 8   noted with disapproval that Schneider accounted for lengthy

 9   increments of time with cursory explanations such as “Research,

10   draft brief,” making it difficult to assess the appropriateness

11   of the time spent.   According to the district court, Schneider

12   also improperly billed for clerical tasks like “index record,”

13   and combined clerical and legal tasks in single entries without

14   differentiating the two.   The Commissioner never raised the issue

15   of inadequate records; his opposition to Vincent’s EAJA motion

16   was based only on “special circumstances” and the allegedly

17   excessive hours billed on the EAJA application.    Schneider first

18   learned of the district court’s record-keeping concerns only when

19   he was penalized for them in the EAJA fee order.   Had Schneider

20   been given the opportunity to address these concerns, he likely

21   could have answered them, at least in part.   For example, he has

22   now explained that “index record” is not a clerical task, but

23   refers to his review of the record for facts supporting his

24   client’s claim.

25

                                     19
 1        Although we do not agree with Vincent’s contention that an

 2   evidentiary hearing was required here, the district court erred

 3   in depriving Schneider of the opportunity to respond to its

 4   criticisms.    An evidentiary hearing may be necessary “if it is

 5   evident that the material facts necessary [to determine the fee

 6   award] are genuinely in dispute and cannot be resolved from the

 7   record.”   Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir.

 8   2005) (quoting Crescent Publ’g Group, Inc. v. Playboy Enters.,

 9   Inc., 246 F.3d 142, 147 (2d Cir. 2001)).     The evidentiary hearing

10   in Farbotko was necessary to determine that district’s

11   “prevailing market rate,” a factual question that required “an

12   evaluation of evidence proffered by the parties.”    Id.   Because

13   the only factual questions here relate to the interpretation of

14   Schneider’s billing records, the need for an evidentiary hearing

15   is unlikely.   Before relying on the perceived billing flaws as a

16   basis for reducing the attorney’s fee award, however, the

17   district court should have given Schneider notice of its concerns

18   and allowed the attorney to address them.1    That way, the

19   district court would have been the first to assess Schneider’s

20   explanation of his billing practices, which is appropriate given


     1
 1        We decline Vincent’s invitation to adopt the Third Circuit’s
 2   rule that “a court may not reduce counsel fees sua sponte as
 3   ‘excessive, redundant, or otherwise unnecessary’ in the absence
 4   of a sufficiently specific objection to the amount of fees
 5   requested.” United States v. Eleven Vehicles, 200 F.3d 203, 211
 6   (3d Cir. 2000). The problem here was not that the district court
 7   raised the issue sua sponte, but that it did so without giving
 8   counsel prior notice of its concerns.

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 1   its greater familiarity with the context in which the legal work

 2   was performed.

 3                                  III.

 4        For the foregoing reasons, we cannot affirm the district

 5   court’s fee reduction; neither can we conclude, however, that

 6   Schneider is due the full award requested.    After giving

 7   Schneider an opportunity to address the billing record issues,

 8   the district court may award the fees in full, or it may still

 9   conclude that excessive or inadequate billing warrants some

10   reduction.   While there are no “special circumstances” that would

11   render a full fee award unjust, the district court continues to

12   have the discretion to adjust the fee award if there are valid

13   reasons for doing so.   We therefore remand for further

14   proceedings consistent with this opinion.

15        We note that this is the second time in as many years we

16   have reversed an EAJA fee order by this magistrate judge reducing

17   or denying fees requested for Schneider’s work.    See Burger v.

18   Astrue, 363 F. App’x 73 (2d Cir. 2010).     In Burger, as in the

19   present case, we rejected the district court’s assessment that

20   Schneider bore responsibility for failing to develop the record.

21   When circumstances “might reasonably cause an objective observer

22   to question [the judge’s] impartiality,” we have the power to

23   remand a case to a different judge.   Pescatore v. Pan Am. World

24   Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996) (quoting United

25   States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995)

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1   (per curiam)) (alteration in original).   We believe it would be

2   prudent to do so here.   We therefore order that on remand this

3   matter be transferred to a different judge.

4                               CONCLUSION

5        For the foregoing reasons, the judgment of the district

6   court is REVERSED and REMANDED for proceedings consistent with

7   this opinion, with instructions to assign the case to a different

8   judge.




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