Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frank Fontana v. Michael J. Astrue

July 21, 2011

FRANK FONTANA,
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 18)

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 April 21, 2011, by Plaintiff Frank Fontana ("Plaintiff"). Defendant filed an opposition on May 19, 2011, arguing that the fee requested is unreasonable and should be reduced. Plaintiff filed a reply on May 31, 2011.

The matter is currently before the Court on the parties' briefs, which were submitted to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

BACKGROUND

Plaintiff filed the instant Complaint challenging the denial of benefits on May 17, 2010. On February 2, 2011, the Court granted the stipulated remand and remanded the action for further proceedings. The parties agreed to remand the action for the ALJ to (1) consider Plaintiff's obesity; (2) consider all medical opinions; and (3) consider Plaintiff's subjective testimony. The remand order also noted that "[i]f, for any reason, the Administrative Law Judge (ALJ) conducting the hearing cannot issue or sign the decision, the hearing office must comply with HALLEX I-2-8-40, which sets forth the applicable procedures for such a situation."

By this motion, Plaintiff seeks $4,332.73 in attorneys' fees for 24.75 hours of attorney time. In opposition, Defendant contends that the requested fees are unreasonable and suggests that the Court award no more than $1,382.97.

DISCUSSION

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). A court has wide latitude in determining the number of hours reasonably expended. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

Plaintiff requests a total of $4,332.73 for attorney time spent in litigating this action. This breaks down to a total of 24.75 attorney hours billed at 2010 rates. In support of her request, Plaintiff submits itemizations of time spent by (1) Mr. Wilborn, from April 11, 2010, through April 19, 2011; and (2) Ms. Bosavanh, from March 23, 2010, through March 7, 2011.

Defendant does not dispute that Plaintiff is entitled to a fee award as the prevailing party, nor does he dispute the hourly rate. Rather, he contends that the requested time is excessive. The Court will review Defendant's specific objections.

A. Mr. Wilborn's Time

1. Confidential Letter Brief

Defendant first objects to the 9.25 hours spent by Mr. Wilborn in reviewing materials and preparing the Confidential Letter Brief from April 11, 2010, through January 13, 2011.

Defendant's argument is based on his belief that Mr. Wilborn, who has experience as an ALJ and is familiar with the HALLEX, should have identified the "obviously reversible error" in "less than 5 minutes." Opposition, at 2. The "obviously reversible error," according to Defendant, is the fact that one ALJ held the hearing but another ALJ, who was not the Hearing Office Chief, signed the decision. Defendant also improperly alludes to the contents of the Confidential Letter Brief by stating that despite "billing a full day" to prepare the Confidential Letter Brief, this "primary issue" was not identified. Opposition, at 3. Finally, Defendant contends that it should not have taken someone with Mr. Wilborn's experience 8 hours "to explain in a letter that the ALJ should have given ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.