Smith v. Astrue

Filing 38

ORDER granting 37 Plaintiff's Motion for Reconsideration. The Court's previous order 36 is amended to award Plaintiff attorney's fees in the amount of $9,217.26. Signed by Judge David G Campbell on 3/15/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jerry Smith,

No. CV-11-02524-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,

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Defendant.

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On February 27, 2013, the Court issued an order granting Plaintiff’s motion for

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attorneys’ fees in the amount of $7,945.46. Doc. 36. That amount was the original

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amount Plaintiff requested in his motion. Doc. 31. Because the government opposed the

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motion, Plaintiff was required to spend additional time researching and drafting a reply

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brief. Doc. 35. In the reply, Plaintiff’s counsel noted that he had spent an additional 4.4

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hours in preparation and that he now requested the sum of $9,217.26. Doc. 35 at 10. The

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Court overlooked the additional request, and its failure to consider it was manifest error.

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“Fees on fees” are permissible in the Ninth Circuit when the agency position is not

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substantially justified. Atkins v. Apfel, 154 F.3d 986, 988-89 (9th Cir. 1998). The Court

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found in its previous order that the Commissioner’s position was not substantially

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justified and that the requested fees were reasonable. The Court finds that the additional

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time to prepare a reply brief is also reasonable.

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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 37) is

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granted. The Court’s previous order (Doc. 36) is amended to award Plaintiff attorney’s

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fees in the amount of $9,217.26.
Dated this 15th day of March, 2013.

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