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Paula A. Vick v. Michael J. Astrue

September 24, 2012

PAULA A. VICK, PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
RESPONDENT.



MEMORANDUM DECISION AND ORDER

INTRODUCTION

Before the Court is Petitioner's motion for attorney fees under the Equal Access to Justice Act. Petitioner requests $5,557.47 in attorneys' fees and $550.00 in court costs payable from the Judgment fund. (Dkt. 19, 22). Respondent objects to the award of fees, contending that the amount is unreasonable and the amounts requested exceed the statutory maximum rate.

The parties have briefed the motion and it is now ripe for the Court's consideration. Having reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and the record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motion will be decided on the record before this Court without oral argument. Dist. Idaho L. Rule 7.1(d).

BACKGROUND

Petitioner appealed the denial of her social security disability benefits application to this Court on November 15, 2010. After submission of the briefs, this Court issued its memorandum decision and order on March 20, 2012, granting Petitioner's petition for review and remanding the matter to the Commissioner for further proceedings. Judgment was entered against the Respondent under "sentence four" of 42 U.S.C. § 405(g).

On June 18, 2012, Petitioner's attorney requested $5,174.98 in EAJA fees, which reflected 28.58 hours at an hourly rate of $181.07. Petitioner further requested $550.00, reflecting the federal court filing fee and the pro hac vice fee, payable from the Judgment Fund. Petitioner itemized the hours billed as follows:

DATE 11/10/2010 (CEB) ITEMIZATION OF HOURS Dictated letter to client re: appeal/ HOURS Dictated complaint 0.75 11/12/2010 (DYI) Review complaint 0.25 11/23/2010 (DYI) Review pro hac vice application/file with Court 0.33 12/13/2010 (CEB) Dictated letters serving summons and complaint 0.50 03/25/2011 (DSJ) Review of Transcript/Statement of Facts/
Medical research 11.25 03/26/2011 (DSJ) Research and Draft Arguments 12.25 03/29/2011 (CEB) Review and Edit Draft Brief 1.50 03/30/2011 (DSJ) Final Revisions of Brief 0.50 06/09/2011 (DSJ) Prepare EAJA petition 1.25

TOTAL FEDERAL COURT HOURS 28.58

TOTAL FEDERAL COURT HOURS (Daniel S. Jones).................25.25 TOTAL FEDERAL COURT HOURS (Charles E. Binder)..........2.75 TOTAL FEDERAL COURT HOURS (Debra Y. Irish)...............0.58

Respondent objected to the reasonableness of the claimed fees on two grounds. First, Respondent objected to Petitioner's calculation of the applicable statutory maximum rate. Respondent contends the rate in 2010 was $175.06, and in 2011 was $180.59. Therefore, Respondent argues the $181.59 rate is incorrect. Second, Respondent contends that 28.58 hours was excessive for a routine matter, and were therefore not reasonably expended. Further, Respondent objects to the multiple attorneys assigned to this matter, contending that it necessarily resulted in duplication of effort for a routine disability matter. Respondent objects to the billing increments used, which exceed .10 hours, and the block billing. And finally, Respondent argues that any proposed order for an award of EAJA fees must state that the fees will be awarded to Petitioner, not Petitioner's attorney. Respondent did not object to Petitioner's requests for reimbursement of the filing and pro hac vice fees.

In response, Petitioner conceded that she calculated the hourly rate incorrectly, and agreed that the hours in 2010 should be set at $175.06, while those hours for 2011 and 2012*fn1 should be set at $180.59. Petitioner refuted Respondent's other arguments, generally citing a lack of any explicit critique of the hours expended. Petitioner further requested an additional 2.25 hours to prepare the fee request and draft the reply brief in this matter, for total fees requested of $5,557.47.

ANALYSIS

The EAJA provides for the award of attorney's fees to a party that prevails against the United States in a proceeding for review of an agency action, unless the court finds "that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). Respondent does not argue that the agency's position was substantially justified but argues that the amount of fees Petitioner requests is not reasonable. See id. at § 2412(d)(2)(A). The Court applies the "lodestar" method to determine what constitutes ...


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