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John Belcher v. Michael J. Astrue

August 3, 2011

JOHN BELCHER, 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 SUPPLEMENTAL APPLICATION FOR FEES (Document 35)

This matter is before the Court on a Supplemental Application for Attorneys' Fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on May 3, 2011, by Plaintiff John Belcher ("Plaintiff"). The Commissioner filed an opposition on July 5, 2011, arguing that Plaintiff is not entitled to further compensation, or alternatively, that the requests are excessive. Plaintiff filed his reply on July 8, 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.

On September 7, 2010, Plaintiff filed his first application for EAJA fees. On December 9, 2010, the Court granted the motion and awarded Plaintiff $7,690.26 in fees and $68.64 in costs.

On December 23, 2010, Plaintiff filed a motion to amend the judgment and sought to correct a calculation error. Plaintiff also requested that the Court identify specific reductions so that Plaintiff could calculate the amount due to his attorneys, Sengthiene Bosavanh and Ralph Wilborn. Defendant did not respond to the motion.

The Court granted Plaintiff's motion in part on February 2, 2011. The Court corrected the calculation error and amended the judgment to reflect an award of $8,379.22 in fees and $68.65 in costs. The fee award represented compensation for 48.25 hours of attorney time at $172.24 per hour. As to Plaintiff's request that the Court amend the judgment to award each attorney a specific amount, the Court denied the request: "Plaintiff's attorneys have contracted with each other to perform services and are certainly capable of splitting the award as they see fit. The Court's failure to divide the award hardly amounts to 'manifest injustice.'"

On May 3, 2011, Plaintiff filed the instant Supplemental Application for EAJA Fees. Plaintiff now seeks an additional $1,706.83 in fees to compensate for time spent in the EAJA reply briefing. Specifically, he seeks compensation for .5 hours of work performed by Ms. Bosavanh and 9.25 hours of work performed by Mr. Wilborn.

Defendant filed an opposition to the request on July 5, 2011. Defendant argues that Plaintiff has already received over $8,300.00 in fees and had an opportunity to present this additional request when he filed his first EAJA motion in October 2010. Alternatively, Defendant contends that the fee request is "patently excessive." Opposition, at 2.

Plaintiff filed a reply on July 8, 2011.

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 ...


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