Lopez v. Astrue

Filing 27

ORDER Granting 21 Application for Award of Attorney Fees. FURTHER ORDERED that Defendant shall pay Plaintiff's counsel the total sum of $10,379.40 for reasonable attorney's fees no later than May 4, 2012. Signed by Magistrate Judge George Foley, Jr. on 4/13/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FAUSTINO LOPEZ,

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Plaintiff,
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vs.
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MICHAEL J. ASTRUE,
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Comm’r. of Soc. Sec.,
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Defendant.
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__________________________________________)

Case No. 2:10-cv-00613-JCM-GWF
ORDER
Application for Award of Attorney’s
Fees (#21)

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This matter comes before the Court on Plaintiff’s Application for Award of Attorney’s

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Fees Pursuant to the Equal Access to Justice Act (#21), filed on January 30, 2012; Defendant’s

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Response to Plaintiff’s Application for Award of Attorney’s Fees Pursuant to the Equal Access

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to Justice Act (#24), filed on March 26, 2012; Plaintiff’s Reply to Defendant’s Response to

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Plaintiff’s Application for Award of Attorney’s Fees Pursuant to the Equal Access to Justice Act

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(#25), filed on April 5, 2012; and Plaintiff’s Assignment of EAJA Fee (#26), filed on April 10,

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2012.

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DISCUSSION

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The EAJA provides that a prevailing party other than the United States should be

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awarded attorney’s fees and other expenses that party incurs in any civil action by or against the

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United States “unless the court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1). The

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court is directed to approve a reasonable fee. Id. A position is “substantially justified” if it has a

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reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 565–66 (1988); United

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States v. Marolf, 277 F.3d 1156, 1160 (9th Cir. 2002). The burden of establishing substantial

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justification is on the government. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.2001)

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Here, Defendant fails to offer any argument that its actions were substantially justified such that

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an award of fees is improper. The Defendant only “opposes Plaintiff’s EAJA motion because the

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fees requested are unreasonable.” (See Defendant’s Response (#24) at 1.) Based on the

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Defendant’s failure to establish substantial justification, Plaintiff’s fee application is granted

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pursuant to 28 U.S.C. § 2412(d)(1). The court must now assesses the reasonableness of

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Plaintiff’s fee application.

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An EAJA fee award must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir.
2001). To decide whether a fee is reasonable, the court considers the hours expended, the

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reasonable hourly rate, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154

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(1990); Hensley v. Eckerhart, 461 U.S. 424, (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir.1998).

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Fees shall not exceed $125 per hour “unless the court determines that an increase in the cost of

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living or a special factor... justifies a higher fee.” 28U.S.C. § 2412(d)(2)(A)(ii). Here, Plaintiff’s

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attorney states that there was a cost of living increase since the amendment to the EAJA took

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effect, which justifies an hourly rate of $173.72 in year 2010 and $179.21 in year 2011. The

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Defendant does not object to the hourly rates requested by Plaintiff. The Court therefore finds

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Plaintiff’s hourly rate of $173.72 in year 2010 and $179.21 in year 2011 is reasonable.

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Plaintiff’s counsel states that he spent a total of 59.1 hours on Plaintiff’s case.1 Counsel

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provides a billing statement detailing the time he devoted to the case and claims that the hours

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spent were reasonable and necessary to provide good representation. The Defendant however

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argues that the hours spent are excessive, and requests that the Court reduce the award of fees by

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15 hours. The Defendant cites Patterson v. Apfel, 99 F. Supp 2d 1212 (C.D. Ca. 2000), to

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support its position. In Patterson, the court found that 33.75 hours was reasonable for a case

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with non-routine issues where a total of 4 hours were spent on oral arguments. Id. at 1214. Here,

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Defendant argues that Plaintiff’s case presented routine issues and no oral argument was

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Plaintiff’s counsel originally stated that a total of 59.5 hours were spent on Plaintiff’s case, but in his
Reply, Plaintiff conceded that the total hours should be reduced by .4 hours. (See Plaintiff’s Reply (#25) at 7.)

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conducted; therefore, an award of almost double the hours awarded in Patterson is unreasonable

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and excessive.

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The Court finds the 59.1 hours spent on Plaintiff’s case is reasonable. See Wirth v.

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Barnhart, 325 F.Supp.2d 911 (E. D. Wis. 2004) (finding over 60 hours reasonable); Embry v.

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Barnhart, 2003 WL 22478769 (N. D. Ill. 2003) (finding 33.47 attorney hours and 55.05

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paralegal/law clerk hours reasonable); Mendoza v. Bowen, 701 F.Supp. 1471 (N. D. Cal. 1988)

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(finding 50 hours not unreasonable). Plaintiff’s counsel provided a detailed description of the

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work performed on this case, and the Court finds that none of the billing entries are redundant or

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excessive. Further, Plaintiff’s counsel ultimately prevailed on Plaintiff’s disability claim.

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Plaintiff also requests reimbursement for an additional five hours spent drafting this Application

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(#21) and Reply (#25). The Court will not award fees for that time.

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The Court therefore finds that an award of fees for a total of 59.1 hours is reasonable.

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Plaintiff’s counsel is therefore entitled to reimbursement of 38.6 hours at an hourly rate of

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$173.72, totaling $6,705.92 and 20.50 hours at an hourly rate of $179.21, totaling $3,673.81.

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The Court will award total fees in the amount of $10,379.40 to be paid to Plaintiff’s counsel.2

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Application for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act (#21) is granted.
IT IS FURTHER ORDERED that Defendant shall pay Plaintiff’s counsel the total sum
of $10,379.40 for reasonable attorney’s fees no later than May 4, 2012.
DATED this 13th day of April, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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In Plaintiff’s Fee Agreement, Plaintiff assigns any court awarded EAJA attorney fees to his attorney. (See
Plaintiff’s Application (#21), at Exhibit 3.) The Court will therefore order the fee award to be paid directly to
Plaintiff’s counsel.

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