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John Belcher v. Michael J. Astrue

August 30, 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 SECOND SUPPLEMENTAL APPLICATION FOR FEES (Document 42)

This matter is before the Court on a Second Supplemental Application for Attorneys' Fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on August 17, 2011, by Plaintiff John Belcher ("Plaintiff").

Though the motion has not been fully briefed, the Court finds an opposition and/or reply unnecessary for decision.

The parties have consented to the jurisdiction of the United States Magistrate Judge.

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 a Supplemental Application for EAJA Fees. Plaintiff sought an additional $1,706.83 in fees for time spent on EAJA reply briefing. The Court granted the motion, but decreased the award to a more reasonable $393.89.

On August 17, 2011, Plaintiff submitted a Second Supplemental Application for EAJA fees, seeking a total of $628.28.

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).

After receiving EAJA awards in connection with the first two applications totaling more than $8,700.00, Plaintiff now seeks an additional $628.28 for 3.5 hours "expended defending entitlement to EAJA fees." Application, at 1. Specifically, Plaintiff seeks 3.25 hours for time spent by Ralph Wilborn in defending the Supplemental ...


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