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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHRISTOPHER CULVER,

Plaintiff,

vs. Case No.: 5:10cv249/RH/EMT

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Plaintiff’s “Petition for Attorney Fees Under the Equal

Access to Justice Act” (“EAJA”) (doc. 22) and a response thereto filed by Defendant Michael J.

Astrue (hereafter, “the Commissioner”) (doc. 23). Plaintiff seeks an award of EAJA fees, “paid in

Plaintiff’s name,” in the total amount of $4,497.26 (see doc. 22 at 4). The Commissioner states he

has no objection to any aspect of Plaintiff’s motion (see doc. 23).

! 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).

In Shalala v. Schaefer, 509 U.S. 292, 299–303 (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. 17, 18). 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.

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! 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 seeks compensation for 6.2 hours of work performed on his behalf by his attorney

in 2010 at an hourly rate of $175.13 ($1,085.81) and 18.9 hours of work performed in 2011 and 2012

at an hourly rate of $180.50 ($3,411.45). Although Plaintiff thus seeks an award based in part upon

hourly rates higher than $125.00, this court concludes that amounts greater than $125.00 per hour

are reasonable, as has been found in numerous recent cases in this district. See, e.g., Facine v.

Barnhart, Case No. 5:02cv26/MD (N.D. Fla. 2004) (finding compensation at the rate of $145.00 per

hour reasonable for work performed in 2001 through 2004); Godwin v. Barnhart, Case No.

3:04cv298/RV/EMT (N.D. Fla. 2006) (finding compensation at the rate of $147.63 per hour

reasonable, based upon a change in the Consumer Price Index, for work performed in 2004 through

2005). The court also concludes that the hours expended by counsel on Plaintiff’s behalf (i.e., 25.1

hours) are reasonable. Accordingly, an award in the amount of $4,497.26 (i.e., $1,085.81 +

$3,411.45) 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. The award, therefore, is properly payable to Plaintiff (as requested).

Accordingly, it respectfully RECOMMENDED that Plaintiff’s Petition for Attorney Fees

Under the Equal Access to Justice Act (doc. 22) be GRANTED as follows:

Plaintiff, Christopher Culver, shall recover fees in the amount of $4,497.26, for time

expended by his counsel in representing him 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 Mr. Culver.

Case No.: 5:10cv249/RH/EMT

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At Pensacola, Florida, this 2nd of May 2012.

/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.: 5:10cv249/RH/EMT

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