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Amy Rowens v. Michael J. Astrue

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


June 1, 2011

AMY ROWENS, 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 attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). Plaintiff seeks attorney's fees for 1.5 hours at $172.85/hour for work done in 2008, 44.9 hours at $172.24 for work done in 2009, and 2.75 hours at $172.24 for work done in 2010, for a total amount of $8,466.52. Plaintiff seeks a cost of living adjustment ("COLA") to the statutory cap on attorney's fees of $125/hour. The Commissioner has not filed a response.

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 a computation and payment of benefits only. See Order filed August 2, 2010. 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. Despite any fee agreement to the contrary, the EAJA award must be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S.Ct. 2521 (2010).

Accordingly, IT IS HEREBY ORDERED that plaintiff's November 1, 2010, request for EAJA fees is granted. Plaintiff is awarded $8,466.52 in attorney's fees. Said fees shall be made payable to plaintiff.

Gregory G. Hollows

GGH:076

20110601

© 1992-2011 VersusLaw Inc.



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