Vicari v. Astrue

Filing 48

ORDER RE SUPPLEMENTAL FEE REQUEST 45 (Illston, Susan) (Filed on 10/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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MICHAEL J. VICARI,

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Plaintiff,

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No. C 09-05238 SI
ORDER RE SUPPLEMENTAL FEE
REQUEST

v.
MICHAEL J. ASTRUE,
Defendant.

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Currently before the Court is plaintiff’s supplemental fee request under the Equal Access to

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Justice Act (“EAJA”) for time plaintiff’s counsel spent seeking to modify the Court’s prior denial of

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EAJA fees. Plaintiff’s motion is currently scheduled for hearing on October 12, 2012. Pursuant to Civil

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Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and

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hereby VACATES the hearing.

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On September 6, 2012, after initially denying plaintiff’s motion for an award of attorneys’ fees

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and costs under the EAJA, the Court granted plaintiff’s motion to amend and awarded plaintiff

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$6,879.82 in EAJA fees and costs. Docket No. 44. That award, however, did not include fees for the

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time plaintiff’s counsel spent seeking amendment, because plaintiff did not seek reimbursement for that

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time in his initial or reply brief. Plaintiff’s counsel declares that he intended to seek payment for the

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time spent on the motion to amend immediately upon being informed that the Court intended to take the

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matter under submission or immediately following the appearance at the hearing on the motion to
amend. See Second Supp. Decl. of Harvey P. Sackett at 2.

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Therefore, the day after the Court issued its order awarding fees to plaintiff, plaintiff submitted

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the motion currently at issue, seeking an award for fourteen hours plaintiff’s counsel spent seeking

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amendment and award of the EAJA fees and filing this motion. The government opposes the most

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recent motion, arguing that the request is untimely, plaintiff should not be awarded fees for his Rule

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59(e) motion, and the fees sought are excessive.
The Court finds that plaintiff should be awarded reasonable fees incurred in litigating the Rule

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59(e) motion to amend. However, the Court also recognizes that plaintiff could have sought these fees

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in connection with the Rule 59(e) motion to amend. In other words, plaintiff should have sought an

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award for time spent on filing the motion to amend in his opening brief and included the additional time

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United States District Court
For the Northern District of California

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plaintiff’s counsel incurred to respond to the government’s opposition by seeking additional fees in his

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reply. By failing to do so, plaintiff has multiplied the proceedings and, now, seeks additional fees for

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bringing this motion. See, e.g., Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010) (noting the

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Supreme Court has cautioned district courts against entertaining “extensive collateral litigation” under

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the EAJA).

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Therefore, the Court will not award plaintiff any fees for the time his counsel spent after August

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31, 2012, the date his reply in support of the Rule 59(e) motion was filed. The Court also finds –

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especially when compared to the time plaintiff’s counsel spent litigating the merits of the underlying

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case – that 7.6 hours was not a reasonable amount of time to spend on responding to the government’s

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four page opposition to the motion to remand, which largely reiterated the arguments raised in the

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government’s initial opposition to plaintiff’s request for EAJA fees. The Court finds that five (5) hours

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is the maximum reasonable amount of time.

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The Court awards plaintiff 9.2 hours for time reasonably expended, amounting to $1150.00.

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IT IS SO ORDERED.

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Dated: October 4, 2012
SUSAN ILLSTON
United States District Judge

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