Mulligan v. ASTRUE

Filing 26

ORDER granting 16 Motion for Attorney Fees. Plaintiff awarded attorney fees in the amount of $6,863.95 and costs in the amount of $805.00. Signed by Chief Judge Barbara B. Crabb on 1/5/10. (krj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

PA T R IC K S. MULLIGAN, Plaintiff, v. MICHAEL ASTRUE, Co m m issioner of Social Security, D efendan t. OR DER 08-cv-364-bbc

O n September 8, 2009, the court of appeals remanded this case to the commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g), concluding that the findings of a medical improvement were not based on substantial evidence. Now before the c o u rt is plaintiff's application for an award of attorney fees, expenses and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiff is seeking attorney fees in the am o un t of $6,625, expenses in the amount of $238.95 and costs in the amount of $805. Plaintiff has produced a fee assignment in which he has assigned any EAJA fees to his lawyer, T im othy T. Sempf. As an initial matter, the parties agree that I should enter final judgment in this case rem an din g the case to the commissioner in accordance with the July 13, 2009 decision of

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the court of appeals. Therefore, I will order that the decision of defendant Michael J. Astrue, C o m m issio n er of Social Security, denying plaintiff Patrick S. Mulligan's application for d isab ility insurance benefits be reversed and remanded pursuant to sentence four of 42 U .S.C. § 405(g) and that judgment be entered accordingly. W ith respect to the application for attorney fees, defendant does not argue that his position was substantially justified. Further, he agrees with the overall reasonableness of the fees requested. However, he points out that plaintiff has included costs in the amount of $ 8 0 5 in his fee request. Such costs are payable separately under 28 U.S.C. § 2412(a) and 28 U.S.C. § 1920 rather than under 28 U.S.C. §2412(d), which covers reasonable attorney fees and expenses.

ORDER IT IS ORDERED that 1. The decision of defendant Michael J. Astrue, Commissioner of Social Security, deny ing plaintiff Patrick S. Mulligan's application for disability insurance benefits is R EV ER S ED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further p ro ceed in gs consistent with this opinion. The clerk of court is directed to enter judgment for plaintiff and close this case.

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2. The petition of plaintiff for an award of attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is GRANTED. Plaintiff's lawyer, Timothy T . Sempf, is awarded fees and expenses in the amount of $6,863.95. 3 . Plaintiff's application for an award of costs is GRANTED. Costs in the amount of $805 are awarded pursuant to 28 U.S.C. § 2412(a). E n tered this 5t h day of January, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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