IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SONYA BYRD, *

 *

Plaintiff, *

 *

vs. * Civil Action 08-00584-KD-B

 *

MICHAEL J. ASTRUE, *

Commissioner of * 

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff's unopposed

Application For Award of Attorney’s Fees Under The Equal Access To

Justice Act (“EAJA”) and memorandum in support. (Docs. 21, 22).

This action was referred to the undersigned Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and

Local Rule 72.2(c)(3). Upon consideration of the pertinent

pleadings, it is the recommendation of the undersigned that

Plaintiff’s motion be GRANTED in part, and that the Plaintiff

receive a reasonable attorney's fee in the amount of $1085.37 under

EAJA for legal services rendered by her attorney in this Court. 

I. Findings Of Fact

A. Plaintiff commenced this action on October 7, 2008. (Doc.

1). On February 10, 2010, this Court entered Judgment, and

reversed and remanded this cause to the Commissioner of Social

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Security for further proceedings. (Docs. 19, 20).

B. Plaintiff's motion for attorney's fees and brief in

support were filed on April 1, 2010. (Docs. 21, 22). In the

motion, Plaintiff requests an attorney's fee award of $812.50.

(Id.) The attorney's fee award represents a total of 6.50 hours,

at an hourly rate of $125.00 per hour, for attorney time spent

representing Plaintiff in this Court. (Id.)

C. The Commissioner of Social Security has filed a Response,

and states that it has no objection to Plaintiff's motion. (Doc.

24).

II. Conclusions Of Law

The U.S. 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 by a reasonable hourly rate." Watford v. Heckler, 765

F.2d 1562, 1568 (11th Cir. 1985) (quoting Hensley v. Eckerhart, 461

U.S. 424, 433 (1983)). See also Jean v. Nelson, 863 F.2d 759, 772-

772 (11th Cir. 1988) (discussing the reasonableness of the hours

expended in the context of contentions by the government that the

fee requests were not supported by sufficient documentation and

often involved a duplication of effort), aff'd sub nom,

Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990). 

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On March 29, 1996, the EAJA was amended so as to increase

the statutory cap on EAJA fees from $75.00 per hour to $125.00

per hour. See, e.g, Ikner v. Apfel, 2000 WL 1844704, *2 n.1

(S.D. Ala. Nov. 9, 2000). These amendments apply to civil

actions commenced on or after the date of enactment; therefore,

the statutory cap of $125.00 per hour applies in this present

action.

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A. EAJA Hourly Rate

The EAJA (as amended)1 provides, in relevant 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 . . .

attorneys 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) (emphasis added.) 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 attorneys 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 for social security cases in the

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Southern District of Alabama has been adjusted to take into account

an increase in the cost of living. Lucy v. Astrue, CV 06-147-C

(S.D. Ala. (July 5, 2007). In Lucy, the following formula, based

on the CPI, was utilized:

($125/hour) x (CPI-U Annual Average “All Items Index,”

South Urban, for month and year of temporal

midpoint)/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 4. The “temporal midpoint” is calculated by counting the

number of days from the date that the claim was filed to the date

of the Magistrate or District Judge’s Order and Judgment. Id. at

5. 

The undersigned finds, based on the Lucy decision, that the

formula utilized by the Court in Lucy is the proper method in this

District for determining the attorney fee rate in cases such as

these. The Complaint in this action was prepared and filed on

October 7, 2008, and the District Judge’s Order and Judgment were

issued on February 10, 2010. (Docs. 1, 19, 20). The number of

days between those two dates is 492; thus making June 10, 2009 the

“temporal midpoint” between those two dates. The CPI-U for June of

2009 was 203.585. Plugging the relevant numbers into the foregoing

formula renders the following equation: $125 x 203.585/152.4. This

calculation yields an hourly rate, adjusted for “cost of living”

increases, of $166.98. Accordingly, based on the formula set forth

in Lucy, the undersigned recommends an hourly rate of $166.98.

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B. Reasonableness of Hours

With regard to the reasonableness of the hours claimed by

Plaintiff’s attorney, “[t]he fee applicant bears the burden of

establishing entitlement and documenting the appropriate hours and

hourly rates.” Norman v. Housing Auth. of City of Montgomery, 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). 

In the case sub judice, attached to Plaintiff’s motion is a

time sheet detailing the description of work performed, the time

expended and the date on which the work was performed. (Doc. 21 at

3). The undersigned has reviewed this document and Defendant's

response, and finds that, under the circumstances, and given the

usual number of hours billed by attorneys in similar actions, 6.50

hours is a reasonable number of hours for attorney time expended

representing Plaintiff in federal court. See, e.g., Coleman v.

Apfel, 2000 WL 1367992 (S.D. Ala. Aug. 30, 2000).

III. CONCLUSION

Therefore, upon consideration of the pertinent pleadings, the

undersigned Magistrate Judge RECOMMENDS that Plaintiff’s Motion for

Attorney's Fees Pursuant to the Equal Access to Justice Act be

GRANTED in part, and that she be awarded attorney fees in the

amount of $1085.37 for 6.50 attorney hours spent representing

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Plaintiff in connection with this action. 

The attached sheet contains important information regarding

objections to the undersigned's report and recommendation.

DONE this 12th day of April, 2010.

 /s/ Sonja F. Bivins 

 UNITED STATES MAGISTRATE JUDGE

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The Court’s Local Rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

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 fourteen (14) 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 days2 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

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party may submit a brief opposing the objection within fourteen

(14) 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/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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