J.M.S. v. ASTRUE

Filing 40

ORDER denying (32) Motion application for EAJA attorney fee in case 1:11-cv-00243-WTL-TAB; denying (31) Motion application for EAJA attorney fee in case 1:11-cv-01233-WTL-TAB. (See Order for details.) Signed by Judge William T. Lawrence on 5/31/2013. (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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J.M.S., by her father,
JEREMY W. SPENCER,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,

Cause No. 1:11-cv-243-WTL-TAB

Defendant.

TRINA D. BECK,

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Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,
Defendant.

Cause No. 1:11-cv-1233-WTL-TAB

ORDER REGARDING EAJA FEE PETITIONS
In the course of reviewing counsel’s EAJA fee petitions in the above-captioned causes, it
came to the Court’s attention that the supporting affidavits were identical in material respects.
Questioning whether a clerical error had occurred, the Court ordered counsel to produce his time
sheets, whether computer-generated or handwritten, reflecting time entries for work performed in
the above-captioned causes. Counsel timely responded, as follows:
Plaintiff’s attorney has never kept “time sheets” as such in Social Security
disability appeals to the U.S. District Court. Having submitted many EAJA
attorney fee applications since approximately 1984, it was learned that similar
tasks in these cases require similar amounts of time. Some adjustments were
made, such as in the two cases cited above. The attorney hours and fees requested
were compared to those in other Seventh Circuit and District Court cases and
were kept within the average limits set in those cases. This approach was accepted
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in Brown v. Astrue, 1:11-cv-01000 (S.D. Ind. 2012). As such the times stated for
each task was the actual time expended.
Pl.’s Atty.’s Resp. at ¶ 2.
An affidavit supporting a petition for fees pursuant to 28 U.S.C. § 2412, must state “the
actual time expended.” 28 U.S.C. § 2412(d)(1)(B). Counsel’s response establishes that he has not
kept records of the time he actually expended on each case. The time set forth in his sworn
affidavit is not the “actual time expended,” but rather reflects an estimation of the time he has
spent on “similar” tasks over the years and is kept within the “average” time spent in similar
cases in the Seventh Circuit and District Court.
As counsel has been warned before, “it is improper to have a uniform billing time for a
certain task.” Walton v. Colvin, 2013 WL 1438103 (S.D. Ind. Apr. 9, 2013); see also Williams v.
Astrue, 2011 WL 2532905 (S.D. Ind. 2011). Counsel is also again admonished to keep formal
contemporaneous time sheets reflecting the actual time expended on each case for future EAJA
fee petitions. Pickett v. Astrue, 1:11-cv-160-SEB-DML, No. 32, (S.D. Ind. May 30, 2013).
As the affidavits supporting the fee petitions in these cause numbers do not state the
“actual time expended,” the Court must DENY the fee petitions in the above-captioned causes.
SO ORDERED:

05/31/2013

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication.

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