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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DONALD R. IFERD,

Plaintiff,

v. 5:11cv19/RH/CJK

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

________________________________________________________________

REPORT AND RECOMMENDATION

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

to Justice Act (EAJA)(doc. 18) and the defendant’s response (doc. 19). The plaintiff

seeks an award of fees in the amount of $873.87. Defendant has responded to the

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motion and does not contest the amount requested (doc. 19).

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

This amount is calculated from 4.9 total hours, which represents 1.3 attorney hours in 2010 at $175.13 per

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hour [$227.67], and 3.6 attorney hours in 2011 at $179.50 per hour [$646.20].

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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

substantially justified. Defendant does not disagree that fees should be paid in this

case (doc. 19). 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.)

Defendant has represented to the court that he does not contest an award offees

of $873.87. It is therefore RECOMMENDED:

1. That the plaintiff’s petition for attorney fees under the Equal Access to

Justice Act (doc. 18) is granted as set forth below.

2. That plaintiff is entitled to recover reasonable fees for his counsel’s

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

Florida pursuant to 28 U.S.C. § 2412 (EAJA); attorney fees of $873.87 under the

EAJA isreasonable; and the Commissioner be directed to pay that amount to plaintiff, 

Case No: 5:11cv19/RH/CJK

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Donald R. Iferd, and mailed to his counsel, Heather Freeman, Esq., at her office

address.

At Pensacola, Florida this 27th day of September, 2011.

 /s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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: 5:11cv19/RH/CJK

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