Belcher v. Commissioner of Social Security

Filing 45

ORDER DENYING plaintiff's Second Supplemental Application for Fees, document 42 ; order signed by Magistrate Judge Dennis L. Beck on 8/30/2011. (Rooney, M)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN BELCHER,

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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner
of Social Security,

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Defendant.

1:09cv1234 DLB
ORDER REGARDING SECOND
SUPPLEMENTAL APPLICATION
FOR FEES
(Document 42)

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This matter is before the Court on a Second Supplemental Application for Attorneys’

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Fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on August 17,

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2011, by Plaintiff John Belcher (“Plaintiff”).

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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.

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BACKGROUND

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Plaintiff filed the instant Complaint challenging the denial of benefits on July 16, 2009.

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On June 9, 2010, the Court granted Plaintiff’s Complaint and remanded the action for

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further proceedings.

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On September 7, 2010, Plaintiff filed his first application for EAJA fees. On December

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9, 2010, the Court granted the motion and awarded Plaintiff $7,690.26 in fees and $68.64 in

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costs.

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On December 23, 2010, Plaintiff filed a motion to amend the judgment and sought to

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correct a calculation error. Plaintiff also requested that the Court identify specific reductions so

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that Plaintiff could calculate the amount due to his attorneys, Sengthiene Bosavanh and Ralph

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Wilborn. Defendant did not respond to the motion.

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The Court granted Plaintiff’s motion in part on February 2, 2011. The Court corrected

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the calculation error and amended the judgment to reflect an award of $8,379.22 in fees and

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$68.65 in costs. The fee award represented compensation for 48.25 hours of attorney time at

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$172.24 per hour. As to Plaintiff’s request that the Court amend the judgment to award each

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attorney a specific amount, the Court denied the request: “Plaintiff’s attorneys have contracted

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with each other to perform services and are certainly capable of splitting the award as they see fit.

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The Court’s failure to divide the award hardly amounts to ‘manifest injustice.’”

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On May 3, 2011, Plaintiff filed a Supplemental Application for EAJA Fees. Plaintiff

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sought an additional $1,706.83 in fees for time spent on EAJA reply briefing. The Court granted

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the motion, but decreased the award to a more reasonable $393.89.

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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

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government demonstrates that its position in the litigation was “substantially justified,” or that

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“special circumstances make an award unjust.” 28 U.S.C. § 2412 (d)(1)(A). An award of

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attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).

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“[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded from a fee award,

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and charges that are not properly billable to a client are not properly billable to the government.

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Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). A court has wide latitude in determining the

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number of hours reasonably expended. Cunningham v. County of Los Angeles, 879 F.2d 481,

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484 (9th Cir. 1988).

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After receiving EAJA awards in connection with the first two applications totaling more

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than $8,700.00, Plaintiff now seeks an additional $628.28 for 3.5 hours “expended defending

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entitlement to EAJA fees.” Application, at 1. Specifically, Plaintiff seeks 3.25 hours for time

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spent by Ralph Wilborn in defending the Supplemental Application and .25 hours spent in

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preparation of the Second Supplemental Application.

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In its prior order, the Court clearly expressed its preference for including time spent in an
EAJA reply in the actual reply itself. Although there was no procedural basis for denying

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Plaintiff’s Supplemental Application, the Court explained that engaging in a second round of

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briefing wasted resources of both the judicial system and the parties. The Court also reduced

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certain portions of the request because the fee request should not have required a separate round

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of settlement negotiations.

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Now, Plaintiff comes before the Court yet again to request even more fees. The Court

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denies the request. First, and as previously suggested by the Court, Plaintiff’s decision to seeks

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fees in an entirely new round of briefing should not render the Commissioner responsible for the

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fees incurred. Although the Court did allow reduced fees for time spent in preparation of the

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reply to the original EAJA application, there is simply no basis for allowing fees here. The Court

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will not require the Commissioner to pay Plaintiffs’ attorneys fees where the work performed

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was simply unnecessary.

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Second, absent unusual circumstances, an attorney’s entitlement to fees should end with

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time spent in replying to the initial EAJA application. Allowing Plaintiff to continue to request

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fees for work performed on supplemental applications would permit a never-ending cycle of

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EAJA fee requests.

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It is therefore ORDERED that Plaintiff’s Second Supplemental Request is DENIED.
IT IS SO ORDERED.
Dated:
3b142a

August 30, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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