IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT T. McGALLAGHER, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 04-0811-M

 :

JO ANNE B. BARNHART, :

Commissioner of :

Social Security, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff's Motion for Award

of Attorney’s Fees Pursuant to the Equal Access to Justice Act

28 U.S.C. 2412, with supporting Memorandum (Docs. 16, 17), and

Defendant's Notice of No Objection to Plaintiff’s Application

for Attorney Fees Pursuant to the Equal Access to Justice Act

(Doc. 18). After consideration of the pertinent pleadings, it

is ORDERED that Plaintiff’s Motion be GRANTED, without

objection, and that Plaintiff's attorney be AWARDED an EAJA

attorney's fee in the amount of $562.50.

Plaintiff filed this action on December 22, 2004 (Doc.

1). On June 16, 2005, the Court granted, without objection

from Plaintiff, Defendant’s Motion and Memorandum for Entry of

Judgment Pursuant to Sentence Four of 42 U.S.C. § 405(g) With

Remand of the Cause to Defendant (Doc. 11), reversing and

remanding this action to the Commissioner for further

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proceedings (Docs. 14, 15). On September 8, 2005, Colin E.

Kemmerly, counsel for Plaintiff, filed a Motion for Award of

Attorney’s Fees Pursuant to the Equal Access to Justice Act 28

U.S.C. 2412, in which Plaintiff requests a fee of $562.50,

computed at an hourly rate of $125.00 for 4.5 hours spent in

this Court (Docs. 16, 17). Defendant in her Response filed

September 22, 2005, stated that she has no objection to the

requested fee (Doc. 18).

 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

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

at 2631; that the fee application was timely filed; and that

her position was not substantially justified (Doc. 18).

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 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

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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).

 The Court, after examination of Plaintiff’s Motion and

supporting documentation, and after consideration of the

reasonableness of the hours claimed, finds that Plaintiff’s

time expended in prosecuting this action before this Court for

a total of 4.5 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).

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1 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).

5

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

Eleventh Circuit determined that the EAJA establishes a twostep 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.

Id. at 1033-34 (citations omitted & footnote omitted)1. 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

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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. 

The prevailing market rate in the Southern District of

Alabama is $125.00 per hour. See Smith v. Massanari, Civil

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

Action 99-0965-CB-L (August 30, 2001); Lee v. Massanari, Civil

Action 00-0518-RV-S (June 29, 2001); Willits v. Massanari,

Civil Action 00-0530-RV-C (May 4, 2001); and Square v. Halter,

Civil Action 00-0516-BH-L (April 12, 2001). Because the market

rate is not greater than the statutory rate of $125.00 per

hour, the Court need not reach the second step set out in the

Meyer case. Multiplying the 4.5 hours by the Southern District

of Alabama inflation-adjusted prevailing market rate of $125.00

results in a fee of $562.50. 

 In conclusion, it is ORDERED, without objection, that

Plaintiff's Motion be and is hereby GRANTED as set out above

and that Plaintiff's attorney be and is hereby AWARDED an EAJA

attorney's fee in the amount of $562.50.

DONE this 28th day of September, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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