Stickler v. Colvin
ORDER granting in part and denying in part 18 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 10/23/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
DARCIE JEAN STICKLER,
NANCY A. BERRYHILL,1 Acting
Commissioner, Social Security
On 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.
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.
Ms. Stickler seeks an award of $17,812.50 in attorney=s fees, and
court costs of $400.2 (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
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
Mr. Gosch is employed by South Dakota Advocacy Services, a § 501(c)(3)
non-profit corporation which is exempt from state and local sales taxes.
For the reasons stated below, the court grants in part
and denies in part Ms. Stickler’s motion.
Mr. 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).
The EAJA sets a limit of $125 per hour for attorney’s fees.
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.”
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).
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 hourly
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.
A court 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).
court also must decide whether the hours spent by Mr. Gosch representing
Ms. Stickler were “reasonably expended.”
901 (1984); 28 U.S.C. § 2412(d)(2)(A).
See Blum v. Stenson, 465 U.S. 886,
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.
Due to 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 reply brief.3
Mr. 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
(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.”
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
Mr. Gosch’s time log is very scant in description and does not contain
sufficient detail to allow the court to make a more particularized examination of
the various legal activities which may have been involved in Ms. Stickler’s case.
To meet his burden of proof, Mr. Gosch must “submit evidence supporting the
hours worked . . . .” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The court
may deduct hours when the motion and supporting documentation fail to
adequately document the hours claimed. Id.
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
The 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.
finds Mr. Gosch reasonably expended 3.5 hours in this category.
Mr. 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.
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
See Dockets 13-14 & 16.
Mr. 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
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.
Mr. 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 memorandum to reverse the decision of the Commissioner is a
more appropriate amount of time given the facts and complexity of Ms. Stickler’s
Mr. Gosch spent approximately 24.7 hours preparing and filing a reply
brief in response to the government’s response to the motion to reverse the
decision of the Commissioner.
The Commissioner seeks a
substantial reduction for preparation of the reply brief because of the use of
“identical wording” from the opening brief.
(Docket 21 at p. 8).
The court finds Mr. Gosch’s reply brief produced strong advocacy, with
specific reference to the JSMF and the administrative record, asking the court
to dismiss the Commissioner’s arguments and reverse the administrative
decision. The court incorporated a substantial part of Mr. Gosch’s analysis
into the order reversing the administrative decision. (Docket 16). Because
of the complex nature of the issues in the case, the court finds Mr. Gosch
reasonably expended the 16.5 hours preparing the reply brief.
Mr. Gosch seeks an additional three hours for the time expended
preparing the motion for attorney’s fees. (Docket 20-1 at p. 3). The Supreme
Court held that attorney’s fees under the EAJA may be awarded for the time
spent applying for the EAJA fee award. Commissioner, Immigration &
Naturalization Service v. Jean, 496 U.S. 154, 162 (1990). Mr. Gosch is entitled
to recover for the 3 hours requested.
The court finds a total of 74.5 hours were reasonably expended by Mr.
Gosch and in line with the complexity of this case, for a total attorney’s fee award
of $13,316.88.4 No objection was made to the $400 for court filing costs to be
paid from the Judgment fund pursuant to 28 U.S.C. §§ 1920 and 2412(a)(1).
Based on the above analysis, it is
ORDERED that plaintiff’s motion (Docket 18) is granted in part and denied
Plaintiff is awarded $13,316.88 in attorney’s fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d).
IT IS FURTHER ORDERED that plaintiff is entitled to $400 for court
filing costs to be paid from the Judgment Fund pursuant to 28 U.S.C. §§ 1920
The Commissioner’s reference to Coleman as authority to reduce Mr.
Gosch’s hours was disingenuous. In Coleman, the administrative record “was
comparatively small, at 294 pages.” Coleman, 2007 WL 4438633, at *3. The
court further found the “case was not unusually complex . . . .” Id. Ms.
Stickler’s case not only contained an extensive administrative record, but
involved very complex medical issues which had not been properly analyzed by
the administrative law judge whose decision was not supported by the
administrative record. See Docket 16.
IT IS FURTHER ORDERED that this award is without prejudice to
plaintiff’s right to seek attorney’s fees under § 206(b) of the Social Security Act,
42 U.S.C. § 406(b), subject to the offset provision of the Equal Access to Justice
Act; however, this award shall constitute a complete release from and bar to any
and all other claims plaintiff may have relating to the Equal Access to Justice Act
in connection with this case.
IT IS FURTHER ORDERED that under Astrue v. Ratliff, 560 U.S. 586,
595-98 (2010), Equal Access to Justice Act fees awarded by the court belong to
the plaintiff and are subject to offset under the Treasury Offset Program,
31 U.S.C. § 3716(c)(3)(B) (2006).
IT IS FURTHER ORDERED that the Equal Access to Justice Act fees
shall be paid to plaintiff Darcie Jean Stickler but delivered to plaintiff’s
attorney Brian Gosch, South Dakota Advocacy Services, 1575 North LaCrosse
Street, Suite K, Rapid City, SD 57 57701.
Dated October 23, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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