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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TERRY M. KNIGHT,

Plaintiff,

vs. Case No. 5:10cv78/RS/EMT

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon a Petition for Attorney’s Fees under the Equal Access

to Justice Act (“EAJA”), filed by David E. Evans, Plaintiff’s counsel (hereinafter “the Petitioner”)

(Doc. 29). Also before the court is a response to the petition, filed by Defendant Commissioner of

Social Security (“the Commissioner”) (Doc. 31). Petitioner seeks an award, payable to him, of fees

in the amount of $4,972.50 (Doc. 29 at 2). The Commissioner states that he does not contest the

amount of fees requested by Petitioner but contends that the award is properly payable to Plaintiff,

as the “prevailing party,” not to Petitioner (see Doc. 31).

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 (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 and remanded the case pursuant to sentence four of § 405(g) (see Docs. 26, 27). The

application forfeeswastimelyfiled, and theCommissioner’s position was not substantiallyjustified. 
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Moreover, the Commissioner does not disagree that fees should be paid in this case (see Doc. 31). 

Accordingly, an award of fees is appropriate.

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

availabilityof qualified attorneys for the proceedings involved, justifies a higher fee.)

Petitioner seeks compensation for 32.5 hours in attorney fees at the rate of $125.00 per hour

($4,062.50), and 18.2 hours of paralegal fees at the rate of $50.00 per hour ($910.00), for time

expended in representing Plaintiff in court-related proceedings and in obtaining an award of fees

from the court. The Commissioner has represented to the court that he does not contest the

reasonableness of the time claimed by Petitioner and his paralegal, nor the hourly rates. Thus,

attorney fees totaling $4,972.50 should be awarded. 

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.1

Accordingly, it respectfully RECOMMENDED that the Petition for Attorney Fees Under

the Equal Access to Justice Act (Doc. 29) be GRANTED as follows:

Plaintiff is entitled to recover attorney fees in the amount of $4,972.50, for time

expended by Plaintiff’s counsel in representing Plaintiff before the United States

District Court for the Northern District of Florida pursuant to 28 U.S.C. § 2412

(EAJA); the amount of attorney fees and hourly rates requested under the EAJA are

reasonable; and the Commissioner is directed to pay Plaintiff that amount. 

At Pensacola, Florida, this 7th day of February 2011.

s/ Elizabeth M. Timothy

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Although the undersigned has recommended payment directly to a prevailing party’s counsel instead of the

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prevailing party, post-Ratliff, the undersigned has done so in limited circumstances and only in cases where the prevailing

party has assigned his or her interest in the EAJA award to counsel. No evidence of any such assignment is present in

the instant case.

Case No. 5:10cv78/RS/EMT
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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. 5:10cv78/RS/EMT