IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CYNTHIA A. FAIR, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 04-0775-CG-D

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for report and recommendation pursuant to 28

U.S.C. § 636(b)(1)(B) and FED. R. CIV. P. Rule 54(d)(2)(D) on plaintiff’s application for attorney fees

under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (Doc. 16). Upon consideration of

all pertinent materials presented, the undersigned recommends that plaintiff receive a reasonable

attorney fee in the amount of $625.00 pursuant to the EAJA for 5 hours of legal services rendered by

plaintiff’s attorney in this court at the rate of $125.00 per hour.

FINDINGS OF FACT

1. On June 30, 2005, this court entered a Rule 58 judgment reversing and remanding this

cause to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for

further proceedings. (Docs. 14, 15) 

2. On September 14, 2005, plaintiff filed an application for award of attorney’s fees

pursuant to the EAJA wherein plaintiff requests attorney fees in the amount of $625.00 to compensate

plaintiff’s counsel for 5 hours of legal services rendered based on an hourly rate of $125.00. (Doc. 16). 

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3. On September 26, 2005, the Commissioner of Social Security filed a response to

plaintiff’s application wherein the Commissioner stated that she had no objection to the application.

(Doc. 18). 

CONCLUSIONS OF LAW

The Equal Access to Justice Act requires a district court to “award to a prevailing party ... fees

and other expenses . . . incurred by that party in any civil action . . ., including proceedings for judicial

review of agency action, brought by or against the United States . . ., unless the court finds that the

position of the United States was substantially justified or that special circumstances make an award

unjust.” 28 U.S.C. § 2412 (d)(1)(A). The court remanded this case pursuant to sentence four of 42

U.S.C. § 405(g), which makes plaintiff a prevailing party under the EAJA. Shalala v. Schaefer, 509

U.S. 292, 302, 113 S.Ct. 2625, 2632 (1993) (“[A] party who wins a sentence-four remand order is a

prevailing party.”) Furthermore, the United States has the burden of showing that it was substantially

justified in this matter. Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987). The United States

declined to dispute this issue and therefore failed to meet its burden. 

The EAJA requires a prevailing party to file an application for attorney’s fees within thirty (30)

days of final judgment in the action. 28 U.S.C. § 2412 (d)(1)(B). The thirty (30) day period began to

run on August 29, 2005, the date this court’s reversal and remand order of June 30, 2005, became

final at the end of the sixty (60) days for appeal provided under Rule 4(a)(1) of the Federal Rules of

Appellate Procedure. See Shalala, 509 U.S. at 302, 113 S.Ct. at 2632. 

Accordingly, the application dated September 14, 2005, is timely since it was filed within the thirty (30)

day period which began on August 29, 2005. 

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 Oates v. Massanari, 2001 WL 530423 (S.D.Ala., May 14, 2001), Crispin v. Massanari,

2001 WL 530420 (S.D.Ala., May 10, 2001), Depriest v. Massanari, 2001 WL 530478 (S.D.Ala.,

May 10, 2001), Bullock v. Halter, 2001 WL 530489 (S.D.Ala., May 08, 2001), Willits v. Massanari,

2001 WL 530498 (S.D.Ala., May 04, 2001), Square v. Halter, 2001 WL 392676 (S.D.Ala., Apr 12,

2001), Ward v. Halter, 2001 WL 392657 (S.D.Ala., Apr 10, 2001), and Kidd v. Halter, 2001 WL

303304 (S.D.Ala., Mar 20, 2001). 

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HOURLY RATE UNDER THE E.A.J.A.

With regard to a determination of the hourly rate to apply in a given EAJA case, the express

language of the Act, provides in pertinent part 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 . . . 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.

28 U.S.C. § 2412(d)(2)(A) (2000). 

In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 1992), the Eleventh Circuit determined that the

EAJA establishes a two-step analysis for determining the appropriate hourly rate to be applied in

calculating attorney's fees under the Act.

The first step in the analysis, . . . is to determine the market rate for "similar services

[provided] by lawyers of reasonably comparable skills, experience, and reputation." . . .

The second step, which is needed only if the market rate is greater than $[125.00] per

hour, is to determine whether the court should adjust the hourly fee upward from

$[125.00] to take into account an increase in the cost of living, or a special factor.

Id. at 1033-1034 (citations and footnote omitted).

The prevailing market rate in the Southern District of Alabama is $125.00 per hour. See Boone

v. Apfel, CA 99-0965-CB-L (S.D. Ala. 2001).1 Because the market rate is not greater than the

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statutory rate of $125.00 per hour, this court need not reach the second step of the Meyer analysis. 

TIME ENTRIES

The defendant has not objected to the application. With regard to the reasonableness of the

hours claimed by plaintiff’s attorney “the fee applicant bears the burden of establishing entitlement and

documenting the appropriate hours and hourly rates.” Norman v. Housing Authority, 836 F. 2d 1292,

1303 (11th Cir. 1988). “[T]he measure of reasonable hours is determined by the profession’s judgment

of the time that may be conscionably billed and not the least time in which it might theoretically have

been done.” Id. at 1306. See also ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir.1999)

(“If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the

amount of hours for which payment is sought, pruning out those that are ‘excessive, redundant, or

otherwise unnecessary.’ Courts are not authorized to be generous with the money of others, and it is as

much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an

adequate amount is awarded.”) 

Attached to the plaintiff’s fee petition is a time sheet describing the work performed, the time

expended, and the date. The undersigned has reviewed these documents and finds that, under the

circumstances and given the usual number of hours billed by attorneys in similar actions, no reductions

are recommended. Therefore, the undersigned finds that a claim for 5 hours of attorney time expended

while representing plaintiff in federal court is reasonable. 

CONCLUSION

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Upon consideration of all matters presented, it is recommended that plaintiff be awarded

attorney’s fees in the amount of $625.00 pursuant to the EAJA as compensation for 5 hours of service

by Colin E. Kemmerly, attorney, at the rate of $125.00 an hour. 

The attached sheet contains important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this 28th day of September, 2005. 

 s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten

days of the date of service of this document, file specific written objections with the clerk of court. 

Failure to do so will bar a de novo determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See

28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The procedure for

challenging the findings and recommendations of the magistrate judge is set out in more detail in SD

ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a “Statement

of Objection to Magistrate Judge’s Recommendation” within ten days after being

served with a copy of the recommendation, unless a different time is established by

order. The statement of objection shall specify those portions of the recommendation

to which objection is made and the basis for the objection. The objecting party shall

submit to the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is insufficient to submit only a copy of the

original brief submitted to the magistrate judge, although a copy of the original brief may

be submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an abandonment of

the objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may submit a brief

opposing the objection within ten (10) days of being served with a copy of the statement of objection. 

FED. R. CIV. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915

and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to this recommendation, but unable to

pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is

required before the United States will pay the cost of the transcript. 

S / KRISTI K. DuBOSE 

UNITED STATES MAGISTRATE JUDGE

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