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Elijaeh M. V. v. Astrue

June 15, 2010

ELIJAEH M. V., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PETITION FOR FEES (Document 16)

This matter is before the Court on a petition for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on March 15, 2010, by Plaintiff Elijaeh M. V. The Commissioner filed an opposition on March 29, 2010, arguing that the fee requested is unreasonable and should be reduced. Plaintiff filed a reply on March 30, 2010.

The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

BACKGROUND

Plaintiff filed the instant complaint challenging the denial of benefits on July 7, 2009. On February 10, 2010, the Court granted the parties' stipulation for remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ was ordered to obtain a review and evaluation of Plaintiff's record by a qualified pediatrician, or other specialized individual, pursuant to Acquiescence Ruling ("AR") 04-1(9). Judgment was entered in favor of Plaintiff on February 10, 2010.

By this motion, Plaintiff seeks a total of $1,632.66 in attorney fees. In opposition, Defendant contends that the requested fees are unreasonable and suggests a fee award of $1,127.49. In reply, Plaintiff requests payment for an additional two hours, for a total of $1,977.14 in fees and costs.

DISCUSSION

A. Reasonableness of Request

Under the EAJA, a prevailing party will be awarded reasonable attorney fees, unless the government demonstrates that its position in the litigation was "substantially justified," or that "special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). An award of attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

In his motion, Plaintiff requests a total of $1,977.14. This amount includes 8.1 attorney hours billed at $172.24 per hour and 4.9 hours of paralegal time billed at $106.53 per hour. This amount also includes $60.00 in costs. In support of his request, Plaintiff submits an itemization of time spent from July 8, 2009, through March 12, 2010.

Defendant does not dispute that Plaintiff is entitled to a fee award as the prevailing party, nor does he dispute the hourly rates. Rather, he contends that certain attorney time and paralegal time should be disallowed and the fee award reduced accordingly.

1. Attorney Time

On January 8, 2010, Plaintiff's counsel, Lawrence D. Rohlfing, recorded 3 hours for "review of transcript and preparation of settlement proposal." Exhibit 1, attached to Petition.

Defendant requests that this time be reduced to .5 hours because counsel should have been able to quickly identify the AR 04-1(9) issue upon which the case was remanded at the mandatory settlement stage. Defendant states that Mr. Rohlfing did not even raise the issue in his two-page settlement letter, despite its "simple and novel" nature. Opposition, 3. Instead, Defendant contends that he first identified the issue, even though counsel as qualified as Mr. Rohlfing should have "immediately" recognized it. Rather than quickly and efficiently securing settlement pursuant to AR 04-1(9), Mr. Rohlfing "engaged in a lengthy review of the record and raised non-threshold issues that were not necessary to the stipulated remand." Opposition, 4. Defendant also points out that he was ...


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