Banks v. Commissioner of Social Security
OPINION AND ORDER GRANTING 27 MOTION for Attorney Fees Under the Equal Access to Justice Act by Plaintiff Andrew Banks. Defendant Commissioner of Social Security shall pay an award of attorney's fees in the amount of $11,001.00 to Plaintiff Andrew Banks within 70 days of this Opinion and Order. Signed by Magistrate Judge Susan L Collins on 8/23/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A.
Berryhill, Acting Commissioner of
CAUSE NO. 1:15-cv-00400-SLC
OPINION AND ORDER
Before the Court is Plaintiff Andrew Banks’s motion to recover attorney’s fees in the
amount of $10,393.00 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412,
together with supporting documents.1 (DE 27; DE 28). Defendant Commissioner of Social
Security (“Commissioner”) opposes the amount of Banks’s fee request, arguing that: (1) the
54.7 hours billed by Banks’s counsel in the district court litigation were not reasonably
expended; and (2) that counsel should have calculated their hourly rates using the cost of living
adjustment for the geographic region where the case was litigated, rather than the national rate.
(DE 33). Banks timely filed a reply brief (DE 34), and thus the motion is ripe for ruling.
For the following reasons, Banks’s motion for EAJA fees will be GRANTED.
Banks’s motion sought $10,393.00 for 54.7 hours of attorney time. Banks has since incurred an
additional 3.2 hours in preparing his reply brief to the instant motion (DE 34 at 15), an amount which the
Commissioner does not challenge. Therefore, Banks’s requested EAJA fee award has now increased to
$11,001.00 for 57.9 hours of attorney time.
A. Applicable Legal Standard
Under the EAJA, “[e]xcept as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and other expenses . . . incurred by
that party in any civil action . . . brought by or against the United States . . . unless the court finds
that the position of the United States was substantially justified . . . .” 28 U.S.C. §
2412(d)(1)(A). Here, the Commissioner does not raise a substantial justification argument in
response to Banks’s fee request. Rather, the Commissioner challenges the number of hours
expended by Banks’s counsel in this litigation and the cost of living index used by counsel when
calculating their hourly rate. The Court will address each of these arguments, in turn.
B. The Number of Attorney Hours Billed
Banks, as the fee applicant, bears the burden of proving that the EAJA fees sought are
reasonable. See 28 U.S.C. § 2412(d)(1)(B); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Factors the Court should consider in evaluating the reasonableness of a fee request are:
(1) the time and labor required; (2) the novelty and difficulty
of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the
attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount
involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
Hensley, 461 U.S. at 430 n.3.
“Hours that are not properly billed to one’s client also are not properly billed to one’s
adversary pursuant to statutory authority.” Id. at 434 (citation omitted). “As a result, the
prevailing party should make a good-faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary.” Davenport v. Astrue, No. 2:07-CV-0064-PRC,
2008 WL 2691115, at *7 (N.D. Ind. July 3, 2008) (citing Hensley, 461 U.S. at 434). “The
amount of a fee award is left to the discretion of the district court because of its ‘superior
understanding of the litigation and the desirability of avoiding frequent appellate review of what
essentially are factual matters.’” Id. (quoting Hensley, 461 U.S. at 437).
The Commissioner argues that Banks fails to meet his burden of showing that the 54.7
hours billed by his attorneys were reasonably expended. (DE 33 at 3). The Commissioner
contends that the hours were excessive given that: (1) the two arguments that Banks advanced in
his appeal were not complex or novel legal issues, but rather, were issues commonly litigated in
Social Security cases; (2) the administrative record in this case was only 416 pages, of which just
87 pages were medical records; and (3) some of the medical records were of limited relevance in
that they related to Banks’s medical issues in 2009 and early 2010, while he was still working
and prior to his alleged onset date in December 2010. (DE 33 at 3).
Given the length of the administrative record, the Commissioner challenges the 29 hours
that Banks’s counsel spent on his opening brief. (DE 33 at 3). The Commissioner further
observes that the facts and procedural history section of Banks’s opening brief was 17 pages, but
the argument section was just half of that, eight pages. (DE 33 at 3). The Commissioner also
believes that the 17.5 hours counsel spent on Banks’s reply brief and the 3.8 hours spent on his
EAJA fee petition and supporting brief are excessive, noting that many of the arguments are
identical to those presented by Banks’s counsel in their other Social Security cases.2 (DE 33 at
3). As the Commissioner sees it, Banks’s lead counsel has extensive experience in litigating
Social Security cases, which should reasonably translate to efficiencies in presenting arguments
to the Court. (DE 33 at 3). For all of these reasons, the Commissioner asks that the Court
deduct 10 hours of attorney time from Banks’s fee request. (DE 33 at 4).
The Commissioner’s arguments, however, are not persuasive. “To begin with, a 400page administrative record is not short.” Monk v. Colvin, No. 2:15-cv-233, 2016 WL 4445659,
at *2 (N.D. Ind. Aug. 23, 2016) (citations omitted). And even if some medical records were less
relevant to the appeal than others due to the date the medical care was administered, “[Banks’s]
attorneys had to sift through everything to separate the wheat from the chaff.” Id. Furthermore,
this is not a case where Banks’s counsel also represented him at the administrative level (DE 28
at 8); thus, counsel had to review the administrative record for the first time during the district
court litigation. See Seefeldt v. Colvin, No. 14-CV-320, 2016 WL 5793683, at *1 (E.D. Wis.
Sept. 30, 2016) (“[C]ounsel did not represent [the claimant] at the administrative level and
therefore had to familiarize herself with the record.”).
Moreover, although the Commissioner argues that the issues raised in this case were
routine and that counsel could have reviewed the record and drafted the opening brief in less
time, the Commissioner “has identified nothing in the [opening] brief that could have been
eliminated[.]” Monk, 2016 WL 4445659, at *2; see Staley v. Berryhill, No. 4:15-cv-00178-TABRLY, 2017 WL 2181151, at *1 (S.D. Ind. May 18, 2017) (“[T]he Commissioner fails to identify
As stated earlier, Banks’s counsel spent an additional 3.2 hours preparing the EAJA reply brief
(DE 34 at 15), but the Commissioner does not challenge these hours. See, e.g., Salaam v. Astrue, No. 08C-0238, 2009 WL 382747, at *2 (E.D. Wis. Feb. 10, 2009) (collecting cases and concluding that the 5.6
hours that counsel spent on the EAJA reply brief was reasonable).
any factual or procedural background that Staley should have omitted.” (citation omitted)). In
fact, “most social security cases do not present particularly complex legal issues, but that does
not mean that providing a thorough exegesis of the record, pointing out various pieces of
evidence that the administrative law judge overlooked or misrepresented, and explaining why
those oversights are material to the outcome does not take time.” Monk, 2016 WL 4445659, at
*2 (citation omitted).
Here, counsel spent 29 hours reviewing the record and preparing the opening brief, which
is well within the range of the number of hours courts have considered reasonable for preparing
an opening brief in a Social Security case. See, e.g., id. (finding 37.6 hours spent reviewing the
record and drafting the opening brief “on par with the time that other courts in this circuit have
found reasonably expended during the initial stage of a social security appeal” (citations
omitted)); Verlee v. Colvin, No. 1:12-CV-45-TLS, 2013 WL 6063243, at *9 (N.D. Ind. Nov. 18,
2013) (approving 36.4 hours spent preparing an opening brief); Garcia v. Colvin, No. 1:11-cv00165, 2013 WL 1343662, at *2 (N.D. Ind. Apr. 3, 2013) (approving 37.75 hours spent
reviewing the transcript, researching, and preparing an opening brief that raised six arguments);
Burke v. Astrue, No. 08 C 50136, 2010 WL 1337461, at *3 (N.D. Ill. Mar. 31, 2010) (concluding
that 34.4 hours was a reasonable amount of time to expend reviewing the transcript, researching,
and drafting a 13-page opening brief that raised five issues); Upperton v. Barnhart, No. 02-C0534-C, 2003 WL 23185891, at *2 (W.D. Wis. Nov. 13, 2003) (determining that it was not
unreasonable for two attorneys to spend 37.1 hours, which included 11.1 hours drafting the facts
section, reviewing a 499-page transcript, and drafting and revising a 32-page brief that advanced
As to the reply brief, while 17.5 hours of attorney time may be on the high side in a case
involving two arguments and a 416-page transcript, it still is not patently unreasonable. See,
e.g., Groskreutz v. Barnhart, No. 02-C-454-C, 2005 WL 567814, at *2 (W.D. Wis. Feb. 28,
2005) (while spending nearly 20 hours on a 10-page reply brief was on the high side, it was not
unreasonable); Garcia, 2013 WL 1343662, at *4 (expending 23 hours on a 15-page reply brief
was not “patently unreasonable”); Copeland v. Astrue, No. 2:11-cv-363, 2012 WL 4959482, at
*1-2 (N.D. Ind. Oct. 17, 2012) (finding it reasonable to spend 15 hours drafting and researching
a reply brief). Likewise, while spending 3.8 hours on preparing an EAJA fee petition may also
be on the high side, the Court does not find it patently unreasonable either. See, e.g., Martinez v.
Astrue, No. 08-C-2, 2008 WL 4722335, at *1 (E.D. Wis. Oct. 24, 2008) (collecting bases
concerning the attorney time spent preparing EAJA fee petitions).
In sum, the Court finds the 57.9 hours of attorney time billed in this case to be within the
range that courts in this Circuit consider reasonable. See, e.g., Spaulding v. Astrue, No. 08 C
2009, 2011 WL 1042580, at *3 (N.D. Ill. Mar. 22, 2011) (collecting cases and finding that 56.4
hours of attorney time “is within the permissible range of social security cases, namely, 40 to 60
hours”). Therefore, the Court will not arbitrarily reduce the number of attorney hours sought by
Banks. See Monk, 2016 WL 4445659, at *2 (concluding that on the circumstances presented,
any reduction in time would be “arbitrary” and “beyond [the court’s] authority” (citation
C. The Hourly Rate Billed by Banks’s Attorneys
The Commissioner also argues that the enhanced hourly rate of $190 that Banks’s
attorneys seek is not warranted. Banks explains that the $190 per hour is a “slightly reduced
amount” from the “All Urban” average of the Consumer Price Index (“CPI”), which is $192.68
per hour. (DE 28 at 6). The Commissioner argues, however, that the attorneys should have
calculated their enhanced hourly rates using the cost of living increase for the “Midwest Urban”
average of the Consumer Price Index (“CPI”), which is $186.32 per hour, thereby measuring the
increase in cost of living on a regional, rather than a national, basis. This would reduce the
attorneys’ requested hourly rate by $3.68, that is, from $190.00 to $186.32. (DE 34 at 2).
While it is clear that “[c]ourts should generally award the inflation-adjusted rate
according to the CPI, using the date on which the legal services were performed,” Sprinkle v.
Colvin, 777 F.3d 421, 428 (7th Cir. 2015) (citation and footnote omitted), the Commissioner has
not provided the Court with any authority as to why the “Midwest Urban” average, rather than
the “All Urban” average, is the appropriate tool on which to rely. District courts within the
Seventh Circuit “have used both regional and [the national index], without a clear preference for
either.” Rodriguez v. Colvin, No. 11 C 5637, 2013 WL 5221335, at *3 (N.D. Ill. Sept. 16, 2013)
(collecting cases). In Sprinkle, the Seventh Circuit declined to resolve the split in the circuit
concerning the use of the two indexes, “leav[ing] it to the discretion of the district courts whether
to adopt the national or regional index in specific cases.” 777 F.3d at 428 n.2.
“Regardless of whether the national CPI or the regional CPI is used, the claimant ‘must
produce evidence that the rate they request is in line with those prevailing in the community for
similar services by lawyers of comparable skill and experience.’” Monk, 2016 WL 4445659, at
*3 (quoting Sprinkle, 777 F.3d at 428-29). Here, Banks submitted an affidavit from another
attorney, Andrew P. Sheff, who represents claimants in social security appeals or comparable
cases, setting forth that attorney’s hourly rates. (DE 27-3). This evidence supports Banks’s
motion for fees at the hourly rate requested. Furthermore, the hourly rate that Banks seeks is
comparable to the hourly rates approved by other judges in this district. See Monk, 2016 WL
4445659, at *3 (awarding an hourly rate of $190); Ruiz v. Colvin, No. 2:14-cv-69, 2016 WL
2908287, at *2 (N.D. Ind. May 18, 2016) (awarding an hourly rate of $191.25). Moreover, the
difference in the hourly rates using the “All Urban” CPI and the “Midwest Urban” CPI equates
to a relatively small amount overall.
Consequently, considering the lack of clarity in the case law about the appropriate CPI,
and because the requested rates are consistent with enhanced hourly rates previously awarded by
judges in this district, the hourly rate requested by Banks, which was calculated using a slightlyreduced rate from the “All Urban” CPI, will be approved.
D. Payment of the EAJA Fee Award
As a final matter, Banks contends that the EAJA fee award should not be subject to offset
for any pre-existing debt he may owe to the Government, and that the award should be directly
paid to his counsel pursuant to the Assignment of Equal Access to Justice Act Fee Award to the
De La Torre Law Office LLC executed by Banks and his attorneys on December 11, 2015 (“the
Assignment”). (DE 27-4). Banks makes various arguments in support of his request, including
that while Astrue v. Ratliff, 560 U.S. 586, 593 (2010), dictates that judgments for EAJA fees
must be rendered to litigants, it does not forbid courts from directing payment of a litigant’s
EAJA judgment to his counsel pursuant to a valid assignment of such EAJA fees. (DE 28 at 920).
The Court is not persuaded by Banks’s attempted parsing of the language in Ratliff or his
other assertions concerning the Anti-Assignment Act and the Judgment Setoff Act. Courts in
this Circuit have repeatedly interpreted Ratliff as requiring that EAJA fee awards belong to the
litigants, and not the attorneys, and that such fee awards are subject to offset to satisfy any preexisting debt that the litigant may owe the Government. See, e.g., Williams v. Colvin, No. 16CV-586-JPS, 2017 WL 384335, at *1 (E.D. Wis. Jan. 25, 2017); Misener v. Colvin, No. 1:12CV-036 JD, 2013 WL 6062709, at *7 (N.D. Ind. Nov. 18, 2013); Walton v. Colvin, No. 1:12-cv688-JMS-TAB, 2013 WL 1438103, at *4 (S.D. Ind. Apr. 9, 2013); Mireles v. Astrue, No. 10 C
6947, 2012 WL 4853065, at *5-6 (N.D. Ill. Oct. 11, 2012); Tadros v. Astrue, No. 10 C 7074,
2012 WL 965090, at *4 n.2 (N.D. Ill. Mar. 21, 2012). This Court is not willing to hold to the
contrary of such weight of authority.
Moreover, in Matthews-Sheets v. Astrue, the Seventh Circuit, in dicta, read Ratliff to
suggest “that if there is an assignment, the only ground for the district court’s insisting on
making the award to the plaintiff is that the plaintiff has debts that may be prior to what she owes
her lawyer.” 653 F.3d 560, 565 (7th Cir. 2011), overruled on other grounds by 777 F.3d 421
(7th Cir. 2011). Here, the Commissioner states that if it can verify that Banks owes no preexisting debt to the Government subject to offset, then it will make the award payable to Banks’s
counsel. (DE 33 at 9). The Commissioner’s proffered approach, which this Court has repeatedly
employed in past cases, is in line with Matthew-Sheets in that this case could be one where “the
plaintiff has debts that may be prior to what she owes her lawyer.”3 653 F.3d at 565; see also
Wickens v. Shell Oil Co., 620 F.3d 747 (7th Cir. 2010) (citing Ratliff for its “holding that an
award of fees under the [EAJA] is payable to the litigant, not to the attorney, and thus is
The Commissioner explains that until the Court enters the amount of the EAJA fee award, it is
impractical to check with the Treasury Department as to whether Banks owes any pre-existing debt to the
Government, as the Treasury Department’s information can change on a daily basis. (DE 33 at 6-9).
available to offset a debt to the government”). As such, the Court will order the same in this
case. Therefore, provided that the Commissioner can verify that Banks does not owe any preexisting debt to the Government subject to offset, then the EAJA fee award is to be paid directly
to Banks’s attorneys pursuant to the Assignment between Banks and his counsel.
For the foregoing reasons, the Court GRANTS Banks’s Motion for Attorney’s Fees (DE
27) in so far as the Commissioner shall pay an award of attorney’s fees in the amount of
$11,001.00 to Banks within 70 days of this Opinion and Order. If counsel for the Commissioner
can verify that Banks does not owe any pre-existing debt to the Government subject to offset, the
Commissioner shall direct that the award be made payable directly to Banks’s attorneys pursuant
to the Assignment between Banks and his attorneys (DE 27-4).
Entered this 23rd day of August 2017.
/s/ Susan Collins
United States Magistrate Judge
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