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Kathryn Roberts v. Michael J. Astrue

November 15, 2011

KATHRYN ROBERTS,
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 GRANTING IN PART AND DENYING IN PART PLAINTIFF'S SUPPLEMENTAL PETITION FOR FEES (Document 56)

This matter is before the Court on a Supplemental Petition for Attorneys' Fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on September 13, 2011, by Plaintiff Kathryn Roberts ("Plaintiff").

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 September 7, 2009.

On October 4, 2010, the Court granted Plaintiff's Complaint and remanded the action for further proceedings. Judgment was entered in favor of Plaintiff on October 4, 2010.

Plaintiff filed her EAJA fee petition on December 14, 2010. After briefing was completed, the Court, sua sponte, ordered the parties to submit additional briefing as to attorney Ralph Wilborn's entitlement to EAJA fees. Specifically, on February 10, 2011, the Court ordered Plaintiff to address whether Mr. Wilborn, who is not a member of the California Bar or the Bar of this Court, was entitled to fees under EAJA.

Plaintiff filed additional briefing on April 4, 2011. Defendant filed a reply on April 6, 2011, indicting that EAJA would not preclude an award of fees under the circumstances.

After a hearing on April 8, 2011, the Court issued a decision on July 13, 2011. The Court found that Mr. Wilborn's involvement was not a "special circumstance" under EAJA that would make an award unjust. The Court awarded a total of $7,202.55 for time spent by both Mr. Wilborn and attorney Sengthiene Bosavanh.

On September 13, 2011, Plaintiff filed this Supplemental Petition, seeking fees for time spent preparing the EAJA reply*fn2 and time spent responding to the Court's request for additional briefing. Plaintiff requests $1,552.76 for time spent in preparation of the EAJA reply. This request is specific to the instant action and relates to work performed by Mr. Wilborn and Ms. Bosavanh.

As for time spent in preparation of the Court-requested briefing, Plaintiff seeks a total of $23,938.69. This amount represents work performed by Mr. Wilborn, Ms. Bosavanh and attorney Linda Ziskin. Plaintiff explains that this work benefitted the three Plaintiffs involved in the additional litigation and suggests that the $23,938.69 either be applied solely to Plaintiff Singmuongthong or divided amongst these three Plaintiffs.*fn3

Defendant opposed the request on October 26, 2011, and Plaintiff filed a reply on November 9, 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). ...


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