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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BARBARA H. ENGBERG,

Plaintiff,

vs. Case No.: 3:10cv64/RV/EMT

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Plaintiff’s amended “Application for Attorney Fee

Under the Equal Access to Justice Act” (“EAJA”) (doc. 30) and a response thereto filed by

Defendant Michael J. Astrue (hereafter, “the Commissioner”) (doc. 29).1 Plaintiff seeks an award

of EAJA fees in the amount of $6,137.50 (doc. 30). The Commissioner states that since the filing

of Plaintiff’s original motion, in which Plaintiff sought the same amount in EAJA fees (see doc. 26),

the parties have agreed to an award of fees in the lesser amount of $5,750.00 (doc. 29).

! Eligibility for Award of Fees

The EAJA, 28 U.S.C. § 2412, allows for the award of attorney fees and other expenses

against the government provided: 1) the party seeking such fees is the “prevailing party” in a civil

action brought by or against the United States; 2) an application for such fees, including an itemized

justification for the amount requested, is timely filed within thirty days of the final judgment in the

action; 3) the position of the government is not substantially justified; and 4) no special

circumstances make an award unjust. The absence of any one of the above factors precludes an

award of fees. 28 U.S.C. § 2412(d)(l)(A), (B).

1

 Plaintiff filed an amended application because she inadvertently failed to include a memorandum of law with

her original application. The substance of the original and amended applications, however, is the same; thus, the

Commissioner’s response to the original application also serves as his response to the amended application.

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In Shalala v. Schaefer, 509 U.S. 292, 113 S. Ct. 2625, 124 L. Ed. 2d 239 (1993), the Supreme

Court held that a social security plaintiff who obtained a remand reversing the Commissioner’s

decision under sentence four of 42 U.S.C. § 405(g) was the “prevailing party” and as such was

entitled to attorney fees and expenses under the EAJA. In the instant case, the court reversed the

decision of the Commissioner and remanded the case pursuant to sentence four of § 405(g) (see

docs. 23, 24). Moreover, Plaintiff’s application for fees was timely filed, the Commissioner’s

position was not substantially justified, and the Commissioner agrees that fees should be paid in this

case. Accordingly, an award of fees is appropriate.

! Amount of Fees

With regard to the question of the reasonableness of the fee sought, 28 U.S.C.

§ 2412(d)(2)(A) states:

(The amount of fees awarded under this subsection shall be based upon prevailing

market rates for the kind and quality of the services furnished, except that . . . (ii)

attorney fees shall not be awarded in excess of $125.00 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.)

Plaintiff’s attorney originally sought compensation for 49.1 hours of work performed at the

statutory hourly rate of $125.00 ($6,137.50), but—as noted supra—the parties have since agreed

to an award of fees in the lesser amount of $5,750.00. Although the basis of the parties’ agreement

is unknown, it appears that the agreed-upon fee is based upon reduced hours, as opposed to a

reduced hourly rate, since Plaintiff seeks compensation at the statutory hourly rate. It thus appears

that the parties’ agreement reflects an award based on forty-six hours expended by counsel on

Plaintiff’s behalf (46 x 125 = 5750), which time expenditure the undersigned finds reasonable under

the circumstances of this case. Accordingly, an award in the amount of $5,750.00, as agreed upon

by the parties, is appropriate.

! Whether Fee is Payable to Plaintiff or his Counsel

The remaining question concerns to whom the EAJA award is payable. In Astrue v. Ratliff,

130 S. Ct. 2521 (2010), the Supreme Court resolved a split among certain Circuit Courts of Appeal

and held that an award of “fees and other expenses” to a “prevailing party” under § 2412(d) is

payable to the litigant, not to the litigant’s attorney. See also Reeves v. Astrue, 526 F.3d 732 (11th

Cir. 2008) (same). The Court further held that because the EAJA award was “payable to the

litigant,” the government could offset the claimant’s debt against that award. Ratliff, 130 S. Ct. at

2528–29. Thus, the award in this case is properly payable to Plaintiff, as the “prevailing party,” as

Plaintiff’s counsel apparently concedes (see doc. 30 at 3).

Case No.: 3:10cv64/RV/EMT

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Accordingly, it respectfully RECOMMENDED that Plaintiff’s “Application for Attorney

Fee Under the Equal Access to Justice Act” (doc. 30) be GRANTED as follows:

Plaintiff, Barbara Engberg, shall recover fees in the amount of $5,750.00, for time

expended by her counsel in representing her before the United States District Court

for the Northern District of Florida pursuant to 28 U.S.C. § 2412 (EAJA). The

United States forthwith shall issue a check payable directly to Ms. Engberg.

At Pensacola, Florida, this 22nd day of December 2011.

/s/ Elizabeth M Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon the magistrate judge and all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No.: 3:10cv64/RV/EMT

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