SAHS v. Astrue

Filing 34

MEMORANDUM AND ORDER: 1. Sahs' motion to amend application for attorneys fees (filing 29 ) is granted. 2. Sahs' original application for attorneys fees (filing 26 ) is denied as moot. 3. Sahs' amended application for attorneys fees ( filing 30 ) is granted. 4. The Commissioner's objection to Sahs' amended application for attorneys fees (filing 31 ) is denied. 5. By separate document, the court shall enter judgment for Sahs and against the Commissioner, providing that Sahs is awarded attorney fees of $8,513.30, subject to offset by any preexisting debt that he owes to the United States. 6. Payment of the attorney fee award, minus any applicable offset, shall be made to Sahs' attorney, Stephen Speicher. Ordered by Senior Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. SAHS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

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4:10CV3161

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff James L. Sahs’ (“Sahs”) amended
application for attorney fees pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d). (Filing 30.) Along with his amended motion, Sahs has filed a
brief and index of evidence in support. (Filings 27 and 28.) The Commissioner has
filed an objection. (Filing 31.) Sahs filed a response to the Commissioner’s objection
along with a supplemental index of evidence. (Filings 32 and 33.)
I. BACKGROUND
On August 5, 2011, I reversed and remanded this case to the Commissioner
under sentence four of 42 U.S.C. § 405(g). (Filings 21 and 22.) On November 3,
2011, Sahs’ counsel filed an application for attorneys fees. (Filing 26.) Four days
later, Sahs’ counsel moved to amend his application (filing 29) and filed an amended
application for attorney’s fees (filing 30).1 In his amended application, Sahs’ counsel
requests the following fees:

1

Because the Commissioner has not objected to Sahs’ motion to amend, the
court will grant it and dismiss Sahs’ original application for attorney’s fees (filing 26)
as moot.

•

$6,935.95 in attorney’s fees, based on 38.80 hours of work at
hourly rates ranging from $175.11 to $181.39;

•

$1,226.10 for law clerk services, based on 40.87 hours at an
hourly rate of $30; and

•

$263.75 for paralegal services, based on 10.3 hours at an hourly
rate of $25.00 for “Paralegal 1,” and 0.25 hours at an hourly rate
of $25.00 for “Paralegal 2.”

(Filing 28 at CM/ECF pp. 3-10.)
Sahs’ counsel specifically requests that a payment of $8,425.80, the sum
amount of the fees above, be made directly to him. (Id. at CM/ECF p. 10.) The
Commissioner does not object to payment of EAJA fees. (Filing 31 at CM/ECF p. 1.)
However, the Commissioner does object to the total amount of fees requested and to
Sahs’ counsel’s request for direct payment. (Id.)
II. DISCUSSION
The EAJA requires an attorney seeking fees to submit “an itemized statement
. . . stating the actual time expended and the rate at which fees and other expenses
were computed.” 28 U.S.C. § 2412(d)(1)(B). Where documentation is inadequate,
the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The court has broad discretion to determine the amount of time reasonably
expended, and an EAJA fee award is reviewed only for abuse of discretion. See
Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990) (“the ultimate amount of an
EAJA fee award remains within the district court’s discretion”). In determining
whether a fee request is reasonable, “[t]he court should consider not merely whether
the attorney’s work was valuable to the client, but whether the issues were novel or
complex, whether the record is voluminous or the facts are unusually complex,
whether the attorney’s specialized skill or knowledge was required, and what the usual

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number of hours for similar cases are in the area.” Johnson v. Barnhart, No. 03-0054CV-W-REL-SSA, 2004 WL 213183, at *1 (W.D. Mo. Jan. 13, 2004) (citing Stockton
v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994)).
Here, Sahs’ counsel argues that his fee request is reasonable and supported by
the following circumstances: he is blind and requires sighted assistance, he did not
represent Sahs at the administrative level, the record is lengthy, he made a number of
arguments and he obtained a favorable result for his client. (Filing 28 at CME/ECF
pp. 13-16; Filing 32 at CM/ECF p. 2.) In contrast, the Commissioner argues the
requested fee is unreasonable because the number of hours claimed is excessive, no
novel arguments were raised, some claimed services are duplicative and the requested
paralegal service reimbursement rate is much greater than the paralegal’s actual wage.
(Filing 31 at CM/ECF pp. 2-7.) The Commissioner also notes that although the
transcript is lengthy, it is not unusual, and an experienced attorney, such as Sahs’
counsel, should be able “to identify and argue most Social Security law issues and
factual scenarios without unusual expenditures of time.” (Id. at CM/ECF p. 4.) The
Commissioner suggests that a total fee of $6,200.00 is appropriate, noting that the fee
would represent compensation for more than 35 hours of attorney time at an hourly
rate of $175.00. (Id. at CM/ECF p. 7.)
In determining the amount of a reasonable fee, I have carefully considered the
arguments of both parties.

I find that Sahs’ counsel’s blindness is a “unique

circumstance” that should be considered. Stockton, 36 F.3d at 50 (remanding for a
modification in the fee award, finding that counsel’s blindness was a unique
circumstance justifying some duplication of time between the attorney and paralegal).
I am also mindful that Sahs’ counsel did not represent Sahs at the administrative level.
As a result, Sahs’ counsel was required to take time to familiarize himself with the
record below.
Although I agree that the transcript is not unusual and that the arguments were
not novel, it does not appear that Sahs’ counsel is claiming duplicative, unnecessary
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or excessive hours.

Further, the Commissioner’s argument that the requested

paralegal service rate is too high lacks merit. A prevailing party that satisfies EAJA’s
other requirements may recover paralegal fees at their “prevailing market rates.”
Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589-90 (2008). The paralegal service
rates requested appear to fall toward the lower range of paralegal service rates in this
area. See Lacy v. Massanari, No. 4:01CV3000, 2002 WL 269382, at *3, n.1 (D. Neb.
Feb. 26, 2002) (discussing paralegal service rates ranging between $30 and $65 per
hour).
In determining the amount of a reasonable fee, I have also reviewed recent
social security cases from this court. (See, e.g., (Case No. 4:10CV3055, Filing 39
(awarding attorney fees of $8,916.15 where 89.78 combined attorney, law clerk and
paralegal hours were claimed); (Case No. 4:08CV3057, Filing 43 (reducing requested
award of $18,472.61 to $7,389.04, where 292 combined attorney, law clerk and
paralegal hours were claimed).) Sahs’ counsel’s fee request of $8,425.80, for 90.22
combined attorney, law clerk and paralegal hours is within the range of EAJA fees
recently awarded by this court. See also Stockton, 36 F.3d at 50 (remanding with
instructions to modify the fee award to $6,941.39 for 97.85 combined attorney and
paralegal service hours). I will also award an additional fee of $87.50, based on 0.5
hours of attorney time, at a rate of $175.00 per hour, for replying to the
Commissioner’s objection.2
With regard to the method of payment, the fee application was accompanied by
an affidavit signed by Sahs in which he personally requested that payment be made
directly to his attorney in order to discharge his obligation under the fee agreement

2

Sahs counsel requests an additional $827.05, based on 4.55 attorney hours at
a rate of $181.77, for replying to the Commissioner’s objection to his fee application.
(Filing 32 at CM/ECF p. 13. However, as a rule of thumb, I will award an additional
fee based on 0.5 hours of attorney time for replying to the Commissioner’s objections
to a fee application. (See Case No. 4:06CV3156, Filing 33 at CM/ECF p. 2, n.2.)
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with his attorney.

(Filing 28 at CM/ECF pp. 21-22.)

Because Sahs expressly

authorized direct payment to his attorney, and because the Commissioner has not
shown, let alone suggested, that he would be prejudiced by the granting of Sahs’
request, I will order that payment be made directly to Sahs’ attorney, after an offset
is made for any pre-existing debt owed by Sahs to the United States. See, e.g., Meyer
v. Astrue, Civ. No. 09-3205 (MJD/LIB), 2011 WL 4036398, at *3 (D. Minn. Aug. 25,
2011) (recognizing that district courts in the Eighth Circuit have ordered fees paid
directly to counsel as long as the Government is afforded an opportunity to offset any
preexisting debt owed by the plaintiff, and the plaintiff has assigned all rights in the
fee award to counsel).
Accordingly,
IT IS ORDERED:
1.

Sahs’ motion to amend application for attorneys fees (filing 29) is

granted.
2.

Sahs’ original application for attorneys fees (filing 26) is denied as moot.

3.

Sahs’ amended application for attorneys fees (filing 30) is granted.

4.

The Commissioner’s objection to Sahs’ amended application for

attorneys fees (filing 31) is denied.
5.

By separate document, the court shall enter judgment for Sahs and

against the Commissioner, providing that Sahs is awarded attorney fees of $8,513.30,
subject to offset by any preexisting debt that he owes to the United States.
6.

Payment of the attorney fee award, minus any applicable offset, shall be

made to Sahs’ attorney, Stephen Speicher.
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DATED this 16 th day of December, 2011.
BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge

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