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Casebeer v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 14, 2009

DAVID A. CASEBEER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Pending before the court is plaintiff's application for an award of attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). Plaintiff seeks attorneys' fees for 31.1 hours of work at $168.78/hour, and 4.3 hours at $166.66/hour, for a total of 35.4 hours and a total amount of $5,965.70. Counsel has not specified for which of the years 2007, 2008, and 2009 these rates are claimed in order to permit the court to determine whether these rates reflect the requested cost of living adjustment ("COLA") to the statutory cap on attorneys' fees of $125/hour.*fn1 However, the Commissioner has not filed a response. Plaintiff also seeks costs and expenses in the amount of $367.82.

The EAJA provides that the prevailing party in a civil action against the United States may apply for an order for attorneys' fees and expenses within thirty days of final judgment in the action. An applicant for Social Security benefits receiving a remand under sentence four of 42 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the matter was remanded under sentence four pursuant to the order of the court for further findings. See Order filed March 5, 2009. Plaintiff thus is entitled to an award of fees under the EAJA. The court must allow the fee award unless it finds that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562, 568-69 (9th Cir. 1995).

Having no opposition from the Commissioner, the court finds that the requested fees are reasonable and that plaintiff is entitled to the amount requested.

Accordingly, IT IS HEREBY

ORDERED that plaintiff's April 21, 2009, request for EAJA fees is granted. Plaintiff is awarded $5965.70 in attorneys' fees and $367.82 in costs. Said fees shall be made payable to plaintiff's attorney.


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