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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DONNA ROBINS,

Plaintiff,

vs. CASE NO.: 5:10cv53/RS/MD

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

_____________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is plaintiff’s petition for attorney’s fees under the Equal

Access to Justice Act (EAJA)(doc. 26). The plaintiff seeks an award of fees in the

amount of $4,192.50. The defendant has filed a response indicating that he has no

objection to the payment of fees in that amount (doc. 28).

The Equal Access to Justice Act, 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 30 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).

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. Here, the court reversed the decision of the Commissioner under sentence

four. The application was filed timely, and the Commissioner’s position was not 
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substantially justified. Defendant has no objection to plaintiff’s application for

attorney fees (doc. 28). Accordingly, plaintiff is clearly entitled to fees.

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

§ 2412(d)(2)(A) states as follows:

. . . (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.)

The plaintiff’s attorney seeks compensation for 27.1 attorney hours at $125.00

per hour and 16.1 paralegal hours at $50.00 per hour for a total of $4,192.50 spent

representing plaintiff in court-related proceedings. Defendant has not contested the

award of attorney’s fees of $4,192.50.

Accordingly, it is RECOMMENDED as follows:

1. That plaintiff’s petition for attorney fees (doc. 26) be granted as set forth

below.

2. That plaintiff is entitled to recover a reasonable fee for attorney

representation before the United States District Court for the Northern District of

Florida pursuant to 28 U.S.C. § 2412 (EAJA); attorney fees under the EAJA in the

amount of $4,192.50 are reasonable; and the Commissioner be directed to pay that

amount to plaintiff, Donna Robins, and mail payment to plaintiff’s attorney, David E.

Evans, Esq., at 108 W. 4th Street, Panama City, FL 32401. 

At Pensacola, Florida this 31 day of January, 2011. st

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 5:10cv53/RS/MD
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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 5:10cv53/RS/MD