ENGLISH v. ASTRUE
Filing
41
ORDER denying without prejudice to refiling 33 Application for Attorney Fees under the Equal Access to Justice Act. Signed by Magistrate Judge Denise K. LaRue on 9/8/2015. (REO)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION
HARRY L. ENGLISH, JR.,
Plaintiff,
vs.
CAUSE NO. 1:11-cv-244-DKL-RLY
CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
ENTRY
Application for Attorney Fees under the Equal Access to Justice Act [doc. 33]
Plaintiff Harry L. English, Jr. moves for an award of $6,618.55 of attorney’s fees
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Application for Attorney’s
Fees under the Equal Access to Justice Act [doc. 33] (“Application”).
The defendant
Commissioner of Social Security opposes the motion. For the reasons explained herein,
the Court denies Mr. English’s motion, without prejudice to refiling.
“[A] court shall award to a prevailing party . . . fees and and other expenses . . . in
any civil action . . . , including proceedings for judicial review of agency action, brought
. . . against the United States . . . unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust.”
28 U.S.C. § 2412(d)(1)(A). A party’s application must include “an itemized statement . . .
stating the actual time expended and the rate at which fees and other expenses were
computed.” § 2412(d)(1)(B). Attorney’s fees “shall be based upon prevailing market
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rates” and “shall not be awarded in excess of $125 per hour unless the court determines
that 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.”
28 U.S.C.
§2412(d)(2)(A). “Courts should generally award the inflation-adjusted rate according to
the CPI [consumer price index] using
the date on which the legal services were
performed.” Sprinkle v. Colvin, 777 F. 3d 421, 428 (7th Cir. 2015). In addition, movants
must produce evidence that the cost-of-living increase in the statutory rate is justified in
the relevant market by showing that the increased rate is “in line with those prevailing in
the community for similar services by lawyers of comparable skill and experience,” i.e.,
the prevailing market rate. Id. This showing can be made by affidavits, and even by a
single affidavit by a plaintiff’s attorney setting forth the prevailing market rate. Id., at
428-29.
Plaintiff’s counsel submits his affidavit in support of Plaintiff’s application for fees.
Application, Exhibit A, Affidavit Regarding Application for Attorney Fees under the Equal
Access to Justice Act [doc. 33-1] (“Affidavit”). In it, he itemizes 36.875 hours of legal services
representing Mr. English, from preparing and filing the complaint in February, 2011,
through preparing and filing the present EAJA fee application in November, 2012.
Counsel increased the $125 statutory hourly rate by using the Bureau of Labor Statistics’
CPI Inflation Calculator: $179.21 for 2011 and $183.09 for 2012. 1 U. S. Dept. of Labor,
1 The CPI Inflation Calculator now produces an average value of $182.91 for 2012. The difference
is likely due to the fact that counsel’s affidavit was filed in November 2012, before the annual index had
been determined. For a current year, the Calculator provides the latest monthly index value. U. S. Dept.
2
Bur.
of
Labor
Statistics,
CPI
Inflation
Calculator,
http://www.bls.gov/data/inflation_calculator.htm (last visited Aug. 27, 2015); Affidavit,
at 2. The Affidavit then avers that the hours and fees requested “are reasonable because
they are comparable to those approved in other cases” in this Court. Affidavit, at 3. There
follow citations to twelve decisions of this Court ― seven in 2011, five in 2012 ― which
counsel asserts approved comparable hours and rates in Social Security disability cases.
The total hours approved range from 28.375 to 41.50 (five decisions do not identify the
hours at issue). Id., at 3-4. Seven of the twelve fee awards were in cases litigated by
present counsel.
Attached to the Application is an assignment by Mr. English to his counsel of any
EAJA fees that the Court awards, Application, Exhibit B, Attorney Fee Agreement for Cases
in Federal Court [doc. 33-2] (”Assignment”), at 2, and the attached proposed order awards
fees directly to counsel, [doc. 33-3]. In the reply, Plaintiff’s counsel asks that any fee
award be paid directly to him, pursuant to the Assignment. (Plaintiff’s Response in Reply to
Defendants’ Objection to Application for EAJA Attorney Fee [doc. 38] (“Reply”), at 4-5.)
The Commissioner opposes the Application on several grounds. She does not
argue that her decision was substantially justified.
1. Failure to itemize time actually expended. The Commissioner argues that a
special circumstance makes an award unjust in this case because “it is not clear that his
of Labor, Bur. of Labor Statistics, CPI Inflation Calculator, http://www.bls.gov/data/
inflation_calculator.htm (select “About this calculator” link) (last visited Aug. 27, 2015).
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counsel has submitted contemporaneous time records representing the time he actually
expended on the case.” (Defendant’s Opposition to Plaintiff’s Application for Fees under EAJA
[doc. 37] (“Response”), at 2.) As noted above, the EAJA requires that an application
include an “itemized statement” stating “the actual time expended”.
28 U.S.C. §
2412(d)(1)(B) (emphasis added). The EAJA does not require that applicants submit their
attorneys’ contemporaneous time records; it requires only an itemized statement.
But that itemized statement must show counsels’ actual time expended on the case
― not estimated time, average time (over the general run of counsel’s disability cases), or,
even, reasonable time. The Application asserts that counsel’s affidavit “detail[s] the
amount of time spent on this case,” Application, at 2, and counsel’s affidavit avers that the
itemization is “an accounting of hours spent representing the plaintiff”, Affidavit, at 1, and
represent the “hours expended” on the case, id., at 2, 3. The Commissioner contends that
the Court should have the same lack of confidence in counsel’s current affidavit that it
has had in his previous affidavits. She cites Williams v. Astrue, No. 1:09-cv-1577-DMLRLY, Entry on Motion for Attorney’s Fees [doc. 38], 2011 WL 25332905 (S.D. Ind., June 24,
2011), which denied present counsel’s application for EAJA fees because the previous
eighteen-month pattern of counsel’s virtually identical itemizations of hours led the
Court to conclude that he
has not tracked and reported the actual time he expends in prosecuting
cases seeking judicial review of the Commissioner’s decisions denying
disability claims. Instead, it appears that Mr. Mulvany has decided that
certain legal tasks have specific hourly “worth” no matter the case, no
matter the issues, no matter the arguments, no matter the complexity ― and
no matter the actual time expended, as required by the EAJA.
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*
*
*
Needless to say, this pattern calls into serious doubt the veracity of Mr.
Mulvany’s affidavit attesting to the time he expended on legal services
representing Ms. Williams.
Id., 2011 WL 2532905, at *3-4. The Court then concluded that counsel’s application for
fees did not comply with the EAJA’s requirement to file a statement reflecting the actual
time expended and that the deficiency was a “special circumstance” making an award
unjust. Id., at *1 and *5.
The Commissioner argues that counsel’s fourteen EAJA filings from May 2012
through November 2012 ― about a year after Williams was issued ― demonstrate the same
pattern of virtually identical statements of hours. For the eight fee applications counsel
filed between May and October 2012, the hours that counsel reported he expended on the
complaint, the opening brief, reviewing Commissioner’s response, the reply brief,
reviewing the Court’s entry, and the EAJA application were identical, except for one
instance where he claimed 14 hours for preparing and filing a reply brief, rather than the
15 hours reported in his other applications. (Response, at 4-5.) For the six applications
filed between November 23 and 27, 2012, in fully-briefed and contested cases, counsel’s
reported hours were again virtually identical, except for an increase from 12 to 13 hours
reported for his opening brief in two applications, and an increase from 15 to 16 hours
for his reply brief in two applications. 2 (Id., at 5-6.) The Commissioner contends that this
2 Overall, in these later six applications, counsel increased his opening-brief hours from the 10
hours in the first eight cases to 12 and 13 hours. He maintained the same hours for all other tasks, except
for the two instances of increase from 15 to 16 hours for his reply brief.
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is the same suspicious pattern observed in Williams and argues that the Court should
come to the same conclusion that it came to in Williams: counsel is not providing a
statement of the actual hours that he expended in this case.
In his Reply, counsel quotes the response he states that he makes to the same
argument made by the Commissioner against all of counsel’s fee applications since
Williams: the numbers of hours that he reports are reasonable and should not be reduced
because they are “in accord with” the hours approved by other courts in this Circuit.
(Reply, at 1.) He then states that “[a]ll of the defendant’s opposing arguments were
carefully considered and rejected” by the Court in Brown v. Astrue, No. 1: 11-cv-1000MJD-JMS [doc. 37], Entry on Motion for Attorney’s Fees, 2012 WL 4845642 (S.D. Ind., Oct.
11, 2012), and he quotes extensively from the decision’s rationale. But the Brown decision
did not find that counsel had itemized his actual hours in that case. Rather, it rejected
counsel’s post-Williams virtually identical fee applications as a reason to question or
distrust the hours claimed, and found “nothing inherently unreasonable” in the hours
themselves.
Counsel’s averments in his Affidavit in this case are identical to the ones that he
made in Williams and in Brown and, presumably, in all or most of his affidavits. It would
have been an easy matter for counsel specifically to have averred, after Williams, that the
hours he has itemized represent actual hours that he worked and to have supported that
averment with contemporaneous time records, but he did not. As it is, the pattern of
uniform hours that he has asserted for every major task in the series of applications cited
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by the Commissioner support the same inference that the Court drew in Williams: “that
Mr. Mulvany has not tracked and reported the actual time he expends . . . Instead, it
appears that Mr. Mulvany has decided that certain legal tasks have specific hourly
‘worth,’ no matter the case, no matter the issues, no matter the arguments, no matter the
complexity ― and no matter the actual time expended, as required by the EAJA.” Williams,
at *3. In his Reply, Counsel did not contest this inference with his own denial of the
accuracy of the inference or assert that he does not estimate his hours or submit
“standard” hours based on his judgment of the tasks’ worth. Counsel’s reliance solely on
Brown, without making his own arguments and representations, is insufficient. His
failure to directly address the finding of Williams and his continued pattern of virtually
identical itemizations after Williams and the natural inference therefrom, fails to counter
those inferences or the Commissioner’s arguments. Brown determined only to not subject
counsel’s hours to special scrutiny based on Williams and it found only that counsel’s
hours were not “inherently unreasonable.”
In this case, the Court draws the same inference from counsel’s post-Williams
pattern of hours itemizations that Williams drew and it similarly has no confidence that
counsel’s itemized hours in this case constitute actual hours spent litigating it. Therefore,
Plaintiff’s application is denied. However, it is denied without prejudice. Counsel may
file a new application for fees that is supported with counsel’s contemporaneous time
records for the work performed and a new affidavit that acknowledges the findings of
Williams and clearly states that the hours itemized are hours actually worked by counsel
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on each task ― not estimates, averages, reasonable hours, or any other measure of hours
other than actual work performed on each itemized task. 3
The Commissioner’s other arguments are addressed in the event that Mr. English
refiles an application for EAJA fees.
2. Enhanced hourly rates are not justified. The Commissioner argues that Mr.
English has not provided evidence of the Consumer Price Index by which he enhanced
the statutory rate. However, as noted above, counsel’s affidavit cites to the online
Consumer Price Index maintained by the Bureau of Labor Statistics, and the Court
confirmed the cited rates. The Court concludes that the affidavit’s citation is sufficient
evidence of the CPI enhancements.
3. Unreasonable numbers of hours. The Commissioner argues that Mr. English
has not shown that the hours he requests for each task are reasonable. The only basis that
Mr. English’s counsel’s affidavit provides for the reasonableness of his itemized hours is
citations to other decisions that approved similar hours, but the Commissioner’s
argument is correct that a bare comparison of award totals fails to establish
reasonableness in a particular case because it fails to address the factors of, inter alia,
complexity, number and types of issues, and size of the record, which are the
determinants of the reasonableness of hours spent on particular tasks in a particular case.
3 This ruling moots the Commissioner’s second argument that, as an alternative to denying the
application, the Court should, in its discretion, reduce the hours requested.
8
Smith v. Astrue, No. 1:09-cv-1165-DML-JMS, Order on Motion for Attorneys’ Fees [doc. 48],
2011 WL 2064843 (S.D. Ind., May 25, 2011); Wall v. Astrue, No. 1:05-cv-1221-SEB-JMS,
Entry Discussing Application for Attorney Fees under Equal Access to Justice Act [doc. 51], at
3, 2009 WL 940311, at *2 (S.D. Ind., April 3, 2009). See Tchemkou v. Mukasey, 517 F.3d 506,
511 (7th Cir. 2008).
The Commissioner argues that some of Mr. English’s counsel’s hours are excessive
because the issues were not complex, the medical evidence was not large, and certain
tasks did not warrant the amount of time expended. Her arguments might have merit.
However, the Court has concluded that Mr. English’s counsel has not shown that he has
itemized the actual hours that he expended on this case. Therefore, the Commissioner’s
arguments regarding specific hours on specific tasks will await any re-application for an
award of fees.
4. Payment to counsel, rather than Plaintiff. The Commissioner argues that any
fees should be awarded to Mr. English, not his counsel, despite Mr. English’s specific
assignment of EAJA fees to his counsel, [doc. 33-2].
The Court agrees with the
Commissioner that the statutory text awards fees to prevailing parties, not their
attorneys, and that the awards are subject to offsets for parties’ debts to the government.
28 U.S.C. § 2412(d)(1)(A) and (d)(2)(H); Astrue v. Ratliff, 560 U.S. 586, 591-98 (2010). A
government agency may pay an award directly to a prevailing party’s attorney under the
EAJA only after the government determines that there are no pre-existing debts to offset
and that there is a valid assignment to the attorney. Ratliff, supra. The Department of the
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Treasury, not the Commissioner, determines whether a payment from the government is
subject to offset, and it does so at the time a payment or award is allowed. In addition,
the Anti-assignment Act, 31 U.S.C. § 3727(b), provides that an assignment of any payment
owed by the federal government may be made “only after a claim is allowed [and] the
amount of the claim is decided.”
Therefore, any award of EAJA fees in this case will be awarded to Mr. English, not
his counsel. The Commissioner will then undertake the regular process of determining
whether, at that time, Mr. English has any debts owed to the federal government that
must be offset against the award of fees. The Commissioner shall then determine whether
to pay any remaining award to Mr. English’s counsel, according to the purported
assignment.
Plaintiff’s Application for Attorney Fees under the Equal Access to Justice Act [doc. 33]
is DENIED.
DONE this date: 09/08/2015
Distribution to all ECF-registered counsel of record via ECF-generated e-mail.
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