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John Belcher v. Michael J. Astrue

December 8, 2010

JOHN BELCHER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

ORDER DISREGARDING AND STRIKING EXHIBIT ONE TO DEFENDANT'S OPPOSITION ORDER REGARDING PETITION FOR FEES

(Document25)

This matter is before the Court on a petition for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on September 7, 2010, by Plaintiff John Belcher ("Plaintiff"). The Commissioner filed an opposition on October 7, 2010, arguing that the fee requested is unreasonable and should be reduced. Plaintiff filed his reply on October 21, 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 16, 2009. On June 9, 2010, the Court granted Plaintiff's Complaint and remanded the action for further proceedings. Specifically, the Court found that the testimony of the Vocational Expert was not supported by substantial evidence and was not free of legal error because the ALJ failed to confirm that the testimony was consistent with the Dictionary of Occupational Titles. On remand, the ALJ was ordered ensure that a step five finding, if any, was supported by substantial evidence and free of legal error.

Judgment was entered in favor of Plaintiff on June 9, 2010.

By this motion, Plaintiff seeks $10,644.43 in attorneys' fees and $68.64 in costs, for a total award of $10,713.07. In opposition, Defendant contends that the requested fees are unreasonable and suggests that the Court award no more than $4,500.00 in attorneys' fees. Defendant does not contest the $68.64 in costs. In reply, Plaintiff concedes a total of 4.55 attorney hours,*fn2 for a reduced fee request of $9,860.74 and costs in the amount of $68.64.

DISCUSSION

A. Defendant's Exhibit One

In an effort to demonstrate the unreasonableness of the amount of time spent on

Plaintiff's Opening Brief, Defendant attaches Plaintiff's Confidential Letter Brief and invites the Court to compare the two documents. The Court declines to do so, however, and ORDERS that Exhibit One be DISREGARDED and STRICKEN. The Confidential Letter Brief is for settlement purposes only and will not be used as evidence against a party to these proceedings.

B. 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). ...


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