Reh v. Colvin

Filing 29

MEMORANDUM AND ORDER granting 28 MOTION for Reconsideration. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KUEREH,
Plaintiff,
VS.
CAROL YN W. COLVIN, ACTING
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CIVIL ACTION NO. H-13-1125

MEMORANDUM AND ORDER
In 2014, Kue Reh prevailed in his lawsuit seeking disability payments under the Social
Security Act. Reh then moved for attorney's fees under the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412 et seq., seeking $19,495 for approximately 110 hours oflegal work. (Docket Entry
No. 25). Although the Commissioner did not oppose an award or the hourly rates Reh sought, she
challenged the reasonableness of the total hours claimed and asked that they be reduced from 110
to 40. (Docket Entry No. 26). The court recognized Reh as the prevailing party, found that the
government's position was not substantially justified, that no special circumstances made an award
unjust, and that the fee application was timely. (Docket Entry No. 27) (citing 28 U.S.c. §
2412(d)(1); United States v. Hallmark Constr. Co., 200 F.3d 1076, 1978-79 (7th Cir. 2000)). But
the court also agreed with the Commissioner that many of the hours Reh submitted were
noncompensable and awarded fees for 40 hours oflegal work, the reduced amount the Commissioner
requested. (Jd.). Reh moved for reconsideration. (Docket Entry No. 28). The Commissioner has
not responded.
1

Based on the motion, the record, and the applicable law, the court grants Reh's motion. The
Commissioner is ordered to pay Reh $19,495,1 representing the reasonable value of the
approximately 110 hours oflegal work Reh initially sought. The reasons for granting the motion and
imposing the higher fee award are explained below.

I.

The Legal Standard
The lodestar analysis applies. See Turner v. Oxford Mgmt. Servs., Inc., 552 F. Supp. 2d 648,

650 (S.D. Tex. 2008) (citing Forbush v. JC Penney Co., 98 F.3d 817,821 (5th Cir. 1996)). The
lodestar amount is "the product of reasonable hours times a reasonable rate." Pennsylvania v. Del.
Valley Councilfor Clean Air, 478 U.S. 546, 647 (1986). There is a '''strong presumption' that the

lodestar represents the 'reasonable' fee," City ofBurlington v. Dague, 505 U.S. 557,562 (1992); see
also Perdue v. Kenny A. ex reI. Winn, 559 U.S. 542, 1672-73 (2010), but the lodestar amount may

be adjusted up or down based on the twelve Johnson factors to ensure that the award is reasonable.
See La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995); Watkins v. Fordice, 7

F.3d 453,457 (5th Cir. 1993); Shipes v. Trinity Indus., 987 F.2d 311,320 (5th Cir. 1993). The
factors include:
1.

the time and labor required to represent the client(s);

2.

the novelty and difficulty of the issues in the case;

3.

the skill requisite to properly perform the legal services;

4.

preclusion of other employment by the attorney due to acceptance ofthe case;

5.

the customary fee charged for those services in the relevant community;

1 Less the amount she has already paid Reh pursuant to this court's previous order awarding Reh
attorney's fees. (See Docket Entry No. 27, at 3).

2

6.

whether the fee is fixed or contingent;

7.

the time limitations imposed by the client or circumstances;

8.

the amount involved and the results obtained;

9.

the experience, reputation, and ability of the attorney(s);

10.

the undesirability of the case;

11.

the nature and length of the professional relationship with the client; and

12.

awards in similar cases.

Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).

II.

The Lodestar Calculation
The Commissioner did not dispute the hourly rates Reh seeks. (Docket Entry No. 26, at 1).

The issue is the number of hours reasonably spent on the litigation. The Commissioner's response
to Reh's initial motion for attorney's fees objected to the number of hours Reh claimed. The
Commissioner disputed time entries related to work performed at the administrative level of the
underlying litigation, (Docket Entry No. 25, Ex. A at 3), work on matters not associated with this
case, (id. at 4), work regarding untimely lawyering, (id.), and work performed by individuals other
than Reh's attorney, (id.). The court found merit in the Commissioner's arguments and used them
as the basis for reducing the number of hours Reh could recover.
Reh's motion for reconsideration pointed out additional information about the number and
nature of the hours claimed. 2 Almost all of the time entries the Commissioner disputed have a
financial value of $0.00 assigned to them in the record. (Docket Entry No. 25, Ex. A). The record

In the motion for reconsideration presently before the court, Reh's counsel apologizes for "not
adequately explain[ing] the time-keeping and billing system utilized." (Docket Entry No. 28, at 2 n.l).
2

3

contains time entries representing a total of approximately 280 hours of legal work. But only the
approximately 110 hours oflegal work Reh claims have a financial value greater than $0.00 assigned
to them in the record. The time entries the Commissioner challenged are almost all the zero-value
entries. They are superfluous and meaningless, but they caused real confusion that the motion for
reconsideration has clarified.
The time entries with positive values assigned to them in the record represent legitimate and
reasonable expenditures on legal work that are compensable under the applicable law. As to these
entries, Reh has met his burden of showing that his attorney exercised billing judgment and that the
hours he seeks are reasonable. Without the confusion created by the zero-value entries, and absent
further challenge by the Commissioner or basis for reduction evident in the record, the court grants
the motion for reconsideration. 3
The lodestar in this case results from multiplying the hourly rates by the number of hours Reh
claims, as follows:
•

$184.87 x 3.7 hours for work completed in 2013

+
•

$187.75 x 99.7 hours for work completed in 2014

+

3 The Commissioner, in responding to Reh's initial motion for attorney's fees, also argued that the
number of hours Reh seeks is unreasonable in light ofthe average number of hours courts have awarded in
Social Security cases. (Docket Entry No. 26, at 3). This argument does not adequately account for the
complexity ofthis case, including the need for a Karenni translator, the benefits obtained, and the fact that
the Fifth Circuit has awarded higher compensation when appropriate. See, e.g., Martin v. Heckler, 754 F.2d
1262, 1265 (5th Cir. 1985).

4

•

$92.43 x 1.0 hour for travel time4

•

$19,495.12

The lodestar amount is $19,495.12. The Johnson factors provide no basis for deviating from the
lodestar, which is the amount of the fee award.

IV.

Conclusion
For the foregoing reasons, the court grants the motion for reconsideration and orders the

Commissioner to pay Reh $19,495. 5 Payment is due no later than August 14,2015.
SIGNED on July 17,2015 at Houston, Texas.

Lee H. Rosenthal
United States District Judge

4 On one occasion, Reh's attorney drove to meet Reh at his apartment. (Docket Entry No. 28, at 4).
Reh's attorney discounted the applicable hourly rate for the time spent on that trip by half, dropping the rate
to $92.43. (Docket Entry No. 25, Ex. Aat 24). Courts in the Fifth Circuit have awarded travel expenses
under the EAJA. See, e.g., Gate Guard Servs. L.P. v. Perez, 14 F. Supp. 3d 825, 841 (S.D. Tex. 2014)
(awarding $32,962.67 in travel expenses); Stark v. Comm'r of Soc. Sec., No. 3:14CVI50-DAS, 2015 WL
3795985, at *2 (N.D. Miss. June 17,2015) (awarding $525.00 for travel time commingled with time spent
at oral advocacy). Reh's attorney exercised billing judgment in discounting the hourly rate. See Jimenez v.
Paw-Paw's Camper City, No. Civ.A. 00-1756,2002 WL 257691, at *23 (E.D. La. Feb. 22, 2002) (citing
Watkins v. Fordice, 7 F.3d 453,459 (5th Cir. 1993)) ("Courts in this circuit typically compensate travel time
at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during
travel time."). The court finds that the travel expenses Reh seeks are reasonable.

5 Reh has rounded the value ofthe lodestar down to $19,495.00. Again, the Commissioner is ordered
to pay Reh $19,495, less the amount she has already paid Reh pursuant to the court's previous order
awarding Reh attorney's fees. (See Docket Entry No. 27, at 3).

5