United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
March 24, 2016, the court entered an order (1) reversing the
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying Darcie
Strickler's application for benefits and (2) remanding
the case for the purpose of calculating and awarding
benefits. (Docket 16). Pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412,
Brian Gosch, counsel for Ms. Stickler, timely moved for an
award of attorney's fees and expenses. (Docket 18). Ms.
Stickler seeks an award of $17, 812.50 in attorney's
fees, and court costs of $400. (Docket 20 at p. 1). The
Commissioner does not object to an award of EAJA fees, but
objects to the amount sought in Ms. Stickler's motion.
(Docket 21). For the reasons stated below, the court grants
in part and denies in part Ms. Stickler's motion.
Gosch's opening brief asks that his hourly rate be paid
at $125, the rate stated in the EAJA. (Docket 20 ¶ 6).
His reply brief asks the court to set the hourly rate at
$185.55, after factoring in the cost of living adjustment
permitted by the EAJA. (Docket 22 at p. 2).
EAJA sets a limit of $125 per hour for attorney's fees.
28 U.S.C. § 2412(d)(2)(A). However, a court may award a
higher hourly fee if “an increase in the cost of living
or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a
higher fee.” Id. In other cases in 2015, the
year during which work in the present case occurred, the
court adopted $178.75 as the reasonable per hour rate.
See Colhoff v. Colvin, CIV. 13-5002 (D.S.D. 2013),
Docket 35 at pp. 5-6; Baker v. Colvin, CIV. 15-5042
(D.S.D. 2015), Dockets 21 at p. 1 and 23. The court finds the
rate of $178.75 is reasonable considering the training and
experience of Mr. Gosch in the practice of social security
law. The Commissioner's objection did not acknowledge the
anticipated increase in the hourly rate over the rate set in
§ 2412(d)(2)(A). (Docket 21). After Mr. Gosch filed his
reply brief, the Commissioner did not seek leave to file a
sur-rebuttal brief opposing the requested increase in the
Commissioner seeks to reduce the number of Mr. Gosch's
billable hours to 35 hours. (Docket 21 at p. 2). The
Commissioner argues “the typical number of hours spent
on a district court Social Security proceeding is 20 to
40.” Id. (referencing Coleman v.
Astrue, No. C05-3045, 2007 WL 4438633 (N.D. Iowa Dec.
17, 2007)). The Commissioner contends “[n]othing about
the facts and issues in this matter supports a deviation from
that average EAJA award, and certainly not one as substantial
as Mr. Gosch has requested.” Id. at p. 3.
has the discretion to reduce the amount of the award or deny
an award “to the extent that the prevailing party
during the course of the proceedings engaged in conduct which
unduly and unreasonably protracted the final resolution of
the matter in controversy.” 28 U.S.C. §
2412(d)(1)(C). The court also must decide whether the hours
spent by Mr. Gosch representing Ms. Stickler were
“reasonably expended.” See Blum v.
Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. §
2412(d)(2)(A). The administrative record in Ms.
Stickler's case was 707 pages in length, which the
Commissioner acknowledges is “slightly longer than
average . . . .” (Docket 21 at p. 4). After reviewing
Mr. Gosch's time log (Docket 20-1) and considering the
parties' arguments on this issue, the court finds certain
reductions are proper.
the manner in which Mr. Gosch recorded his hours in his time
log, the court finds it most helpful to aggregate the hours
into four discrete categories: time spent with the client or
performing administrative functions and preparing the summons
and complaint; time spent preparing the joint statement of
material facts (“JSMF”); preparing Ms.
Stickler's motion and supporting memorandum to reverse
the decision of the Commissioner; and time spent preparing a
Gosch reports spending 15.5 hours with his new client,
preparing the summons and complaint, performing
organizational activities and communicating with either the
client or her family members. Mr. Gosch asks to be reimbursed
for his time organizing and reviewing the file, separate and
apart from preparing the JSMF and performing other
administrative functions because a former attorney with South
Dakota Advocacy Services left the file in a state of
disarray. (Docket 22 at p. 3). Although the court recognizes
that South Dakota Advocacy Services is a small non-profit
organization, “[i]t is appropriate to distinguish
between legal work, in the strict sense, and . . . clerical
work . . . and other work which can be accomplished by
non-lawyers but which a lawyer may do because he has no other
help available.” Missouri v. Jenkins by Agyei,
491 U.S. 274, 288 n.10 (1989). The “dollar value [of
that work] is not enhanced because a lawyer does it.”
Id. Mr. Gosch has not identified an hourly value
associated with these clerical or secretarial activities
which are typically part of law practice overhead. See
Lacy v. Massanari, No. 4:01CV3000, 2002 WL 269382, at *3
(D. Neb. Feb. 26, 2002) (referencing Jenkins by
Agyei, 491 U.S. at 288 n.10; other citations omitted).
Those tasks must be removed from EAJA consideration.
court finds the 13 hours spent communicating with the client
or a family member and organizing or reviewing the file in
advance of those sessions were not reasonably spent in
advocating his case before the court. The court finds Mr.
Gosch reasonably expended 3.5 hours in this category.
Gosch spent approximately 48.53 hours preparing the JSMF in
Ms. Stickler's case. This court requires attorneys in
social security cases to submit a highly detailed JSMF.
(Docket 7 at pp. 1-2). In Ms. Stickler's case, the
administrative record was 700 pages in length, contained
multiple documents involving clinical evaluations of Ms.
Stickler's mental conditions for consideration at step 3
of the evaluation process, her activities of daily living,
lay witness testimony and the testimony of her treating
psychiatrist. While the JSMF was not as detailed as the court
prefers and the parties chose to cite separately to the
administrative record, the parties and the court did rely on
the JSMF. See Dockets 13-14 & 16.
Gosch's time log, however, shows a number of entries
which seem to be for repetitive work in reviewing the
administrative record and drafting the JSMF. Due to the level
of detail the court requires of attorneys when submitting a
JSMF and the size of the administrative record, the court
finds Mr. Gosch reasonably expended 25 hours preparing the
JSMF in the case. (Docket 15).
Gosch spent approximately 46.5 hours preparing his motion and
supporting memorandum to reverse the decision of the
Commissioner in Ms. Stickler's case. The court finds 46.5
hours is excessive for preparing the initial motion and
memorandum after 48.5 hours was already spent preparing the
JSMF. Using three hours to scrutinize the administrative
record and the JSMF is redundant. Because of the complex
nature of the plaintiff's challenges to the
Commissioner's decision, the court finds 26.5 hours spent
preparing his motion and supporting ...