The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING IN PART PETITION FOR ATTORNEYS FEES PURSUANT TO EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) (Doc. 22)
Plaintiff sought judicial review of a final decision of the Commissioner of Social Security denying his application for benefits. On October 20, 2010, Plaintiff filed a petition for attorney's fees in the amount of $2,328.79 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). (Doc. 22 at 1). Defendant filed a brief in opposition to the motion on October 28, 2010. (Doc. 23). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion for EAJA fees.
On July 29, 2010, the Court issued a decision and order directing remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 20).
On October 20, 2010, Plaintiff filed a motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Plaintiff seeks an award of $2,328.79 based upon a total of 4.5 hours of attorney work performed in 2009 and 8.9 hours of attorney work performed in 2010. (Doc. 22 at 3 and Attachment). In addition, Plaintiff requests that the Court award the fees directly to his attorney. (Id. at 4).
Defendant does not oppose the attorney's fee amount sought by Plaintiff, nor does he contend that the hours spent by counsel on this matter are unreasonable. Instead, he opposes Plaintiff's request that the fee amounts be awarded directly to Plaintiff's counsel.
With respect to fees awarded under the EAJA, 28 U.S.C. § 2412(d)(1(A) provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, 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. (Emphasis added).
Fees awarded under this section must be reasonable and Plaintiff has the burden of proof on this point. See Hensley v. Eckerhart, 461 U.S. 424, 434, 437 (1983); see also Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998) (specifically applying these principles to fee requests under the EAJA).
2. Plaintiff's Attorney's fees Request Is Reasonable but Must be Modified
As noted, Defendant does not challenge the fee request itself. The Court has examined the documentation submitted by Plaintiff and concludes that the hours expended by counsel are reasonable. However, the hourly rates sought by Plaintiff minimally fail to comport with the adjusted cost-of-living rates provided by the Ninth Circuit Court of Appeals. For instance, Plaintiff seeks compensation for fees performed in 2009 at the rate of $172.25 per hour. (Doc. 22 at 3). However, the Ninth Circuit provides for an adjusted rate of $172.24 per hour. Plaintiff seeks also an hourly rate of compensation of $174.57 for work performed by counsel in 2010. (Id.) Again, the Ninth Circuit provides for compensation at an hourly rate of $174.64. When the rates provided on the Ninth Circuit's website are applied, the actual amount to which Plaintiff is entitled under the EAJA totals $2,329.38 for all work performed by counsel in 2009 and 2010.*fn1
Thus, the Court will ORDER that Plaintiff be awarded $2,329.38 in EAJA fees.
3. Award of the Fees Under the Eaja Must be to Plaintiff ...