1In Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1509

(11th Cir. 1988), the Court stated: “It is readily apparent that

the party eligible to recover attorneys’ fees under the EAJA as

part of its litigation expenses is the prevailing party.” See

also, Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir. 2008) (“We

conclude the EAJA means what it says: attorney’s fees are awarded

to the “prevailing party,” not to the prevailing party’s

attorney.”) However, in this action, Mr. Lassiter has attached to

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ROBERT E. TODD, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 09-0318-M

 :

MICHAEL J. ASTRUE, :

Commissioner of :

Social Security, :

 :

Defendant. :

AMENDED MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff's attorney’s

Application for Attorney Fees Under the Equal Access to Justice

Act, with supporting documentation (Doc. 19) and Defendant's

Notice of Intent Not to Object to Plaintiff's Application for

Attorney Fees and Costs Pursuant to the Equal Access to Justice

Act, 28 U.S.C. § 2412 (Doc. 20). After consideration of the

pertinent pleadings, it is ORDERED that the Application be

GRANTED and that Plaintiff’s attorney be AWARDED an EAJA

attorney's fee and expenses in the amount of $3,898.391.

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 1 of 8
the Application for Attorney Fees a Limited Power of Attorney,

signed by Plaintiff, authorizing payment of the EAJA fee to Mr.

Lassiter (Attachment 2 to Doc. 19). Therefore, it is ORDERED

that the EAJA fee be paid directly to Plaintiff’s attorney.

2

Plaintiff filed this action on June 5, 2009 (Doc. 1). On

November 4, 2009, Defendant filed an unopposed Motion and

Memorandum for Entry of Judgment Under Sentence Four of 42 U.S.C.

§ 405(g) With Remand of the Cause to the Defendant (Doc. 13). 

The parties also filed their Consent to the Exercise of

Jurisdiction by a United States Magistrate Judge on November 4,

2009 (Doc. 15), and, on November 5, 2009, Judge DuBose referred

this action to the undersigned Judge for the conduct of any and

all further proceedings in this action (Doc. 16). 

On November 17, 2009, the undersigned Judge entered a

Memorandum Opinion and Order, granting Defendant’s unopposed

Motion to Remand, reversing the decision of the Commissioner, and

remanding this action for further proceedings not inconsistent

with the Orders of this Court (Doc. 17). Judgment was entered in

favor of Plaintiff and against Defendant (Doc. 18). 

On January 20, 2010, Byron A. Lassiter, counsel for

Plaintiff, filed an Application for Attorney Fees Under the Equal

Access to Justice Act, in which he requests a fee of $3,548.39,

computed at an hourly rate of $171.42 for 20.7 hours spent in

this Court (Doc. 19). Defendant in his Notice filed February 2,

2010, stated that he does not oppose Plaintiff’s Application for

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 2 of 8
3

Attorney Fees (Doc. 20). 

 The EAJA requires a 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 EAJA further requires that a

prevailing party file an application for attorney's fees within

thirty days of final judgment in the action. 28 U.S.C. §

2412(d)(1)(B). The court's judgment is final sixty days after it

is entered, which is the time in which an appeal may be taken

pursuant to Rule 4(a) of the Federal Rules of Appellate

Procedure. See Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct.

2625, 2632 (1993).

Defendant concedes that Plaintiff became the prevailing

party when the Court remanded this action, Schaefer, 113 S.Ct. at

2631, that the fee motion was timely filed; however, he does not

concede that the original administrative decision denying

benefits was not substantially justified (Doc. 20).

The EAJA, like 42 U.S.C. § 1988, is a fee-shifting statute. 

The Supreme Court has indicated that “‘the most useful starting

point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 3 of 8
4

by a reasonable hourly rate.’” Watford v. Heckler, 765 F.2d

1562, 1586 (11th Cir. 1985)(EAJA), quoting Hensley v. Eckerhartt,

461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983)(§ 1988). In

describing this lodestar method of calculation, the United States

Supreme Court stated:

This calculation provides an objective basis

on which to make an initial estimate of the

value of a lawyer’s services. The party

seeking an award of fees should submit

evidence supporting the hours worked and the

rates claimed. Where the documentation of

hours is inadequate, the district court may

reduce the award accordingly. The district

court also should exclude from this initial

fee calculation hours that were not

“reasonably expended” .... Cases may be

overstaffed, and the skill and experience of

lawyers vary widely. Counsel for the

prevailing party should make a good-faith

effort to exclude from a fee request hours

that are excessive, redundant, or otherwise

unnecessary, just as a lawyer in private

practice ethically is obligated to exclude

such hours from his fee submission. In the

private sector, ‘billing judgment’ is an

important component in fee setting. It is no

less important here. Hours that are not

properly billed to one’s client also are not

properly billed to one’s adversary pursuant

to statutory authority.

Hensley, 461 U.S. at 434 (citations omitted). Counsel must use

professional judgment in billing under EAJA. A lawyer should

only be compensated for hours spent on activities for which he

would bill a client of means who was seriously intent on

vindicating similar rights. Norman v. Housing Authority, 836

F.2d 1292, 1301 (11th Cir. 1988).

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 4 of 8
5

 The Court, after examination of Plaintiff’s attorney’s

Application and supporting documentation, and after consideration

of the reasonableness of the hours claimed, finds that

Plaintiff’s counsel’s time expended in prosecuting this action

for a total of 20.7 hours is reasonable. 

With respect 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

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)(Supp. 1997).

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 $75 per hour, is to determine whether

the court should adjust the hourly fee

upward...to take into account an increase in

the cost of living, or a special factor.

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 5 of 8
2

 Subsequent to Meyer, the cap was raised from $75.00 per hour to

$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A)(Supp.

1997).

6

Id. at 1033-34 (citations omitted & footnote omitted)2. The

applicant bears the burden of producing satisfactory evidence

that the requested rate is in line with prevailing market rates. 

NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). 

Satisfactory evidence at a minimum is more than the affidavit of

the attorney performing the work. Blum v. Stenson, 465 U.S. 886,

104 S.Ct. 1541, 1547 n.11 (1984). Where the fees or time claimed

seem expanded or there is lack of documentation or testimony in

support, the court may make an award on its own experience. 

Norman v. City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.

1988). Where documentation is inadequate, the court is not

relieved of its obligation to award a reasonable fee, but the

court traditionally has had the power to make such an award

without the need of further pleadings or an evidentiary hearing. 

Id. 

Since 2001, the prevailing market rate in the Southern

District of Alabama has been $125.00 per hour. See e.g., Smith

v. Massanari, Civil Action 00-0812-P-M (October 25, 2001); and

Square v. Halter, Civil Action 00-0516-BH-L (April 12, 2001). 

However, in 2007, in an action before Judge Cassady, a formula

was approved and used to adjust the prevailing market hourly rate

to account for the ever-increasing cost of living. Lucy v.

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 6 of 8
3“The appropriate endpoint for computing the cost of living

adjustment is the temporal midpoint of the period during which

the compensable services were rendered[;] ... [t]he temporal

midpoint is calculated by computing the number of days from the

date the claim was prepared until the date of the Magistrate or

District Judge’s Order and Judgment.” Lucy v. Barnhart, CA 06-

0147-C, Doc. 31, at 3.

7

Barnhart, CA 06-0147-C (July 5, 2007). As set out in Lucy, the

formula to be used in calculating all future awards of attorney’s

fees under the EAJA is: “‘($125/hour) x (CPI-U Annual Average

“All Items Index”, South Urban, for month and year of temporal

midpoint3)/152.4, where 152.4 equals the CPI-U of March 1996, the

month and year in which the $125 cap was enacted.’” (Id. At 11,

quoting Doc. 31, at 2). The undersigned also adopts this formula

in EAJA fee petition actions for use in arriving at the

appropriate hourly rate.

The temporal midpoint in this action was August 22, 2009,

the complaint having been filed on June 5, 2009 (Doc. 1), and the

Court having entered its Memorandum Opinion and Order and

Judgment on November 9, 2009 (Docs. 17, 18). The CPI-U for

August 2009 was 209.000. Plugging the relevant numbers into the

foregoing formula renders the following equation: $125.00 x

209.000/152.4. Completion of this equation renders an hourly

rate of $171.42. 

 In conclusion, it is ORDERED that Plaintiff’s attorney’s 

Application be and is hereby GRANTED, without objection, and that

Mr. Lassiter be and is hereby AWARDED an EAJA attorney's fee in

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 7 of 8
8

the amount of $3,548.39 plus $350.00 in court costs for a total

fee and expenses in the amount of $3,898.39.

DONE this 3rd day of March, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00318-M Document 25 Filed 03/03/10 Page 8 of 8