IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ISABELL HAYWARD, :

Plaintiff, :

vs. : CA 09-0453-C

MICHAEL J. ASTRUE, :

Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule

54(d)(2)(D) of the Federal Rules of Civil Procedure, on plaintiff’s motion for

an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”),

28 U.S.C. § 2412. (Doc. 18) Upon consideration of all pertinent materials

contained in this file, it is determined that plaintiff should receive a reasonable

attorney’s fee in the amount of $2,660.73 under the EAJA for legal services

rendered by her attorney in this Court and court costs of $350.00, for a total

EAJA award of $3,010.73. 

FINDINGS OF FACT

1. On January 7, 2010 this Court entered a Rule 58 judgment

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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. (Doc.

17; see also Doc. 16) 

2. The application for attorney’s fees under the EAJA was filed on

February 4, 2010 (Doc. 18), twenty-eight (28) days after entry of final

judgment (compare id. with Doc. 17). In the application, plaintiff requests

attorney’s fees in the amount of $2,660.73 to compensate her attorney for the

time (15.5 hours) spent representing her before this Court as of the date of the

filing of the fee application and court costs of $350.00. (See Doc. 18)

3. The Commissioner of Social Security filed his response to

plaintiff’s motion on February 16, 2010 and therein notified the Court that he

would not oppose plaintiff’s motion for attorney’s fees under the EAJA. (Doc.

20)

CONCLUSIONS OF LAW

1. 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

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1 “[A] party who wins a sentence-four remand order is a prevailing party.” Shalala

v.Schaefer, 509 U.S. 292, 302, 113 S.Ct.2625, 2632, 125 L.Ed.2d 239 (1993). 

3

special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). It

is imminently clear in this case that plaintiff is a prevailing party under the

EAJA1

 and the Court further finds that the position of the United States in this

case was not substantially justified.

2. 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-day clock will not begin to run in this case

until this Court’s reversal and remand order of January 7, 2010 becomes final,

which will occur 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 v.

Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993),

that is, March 8, 2010. The application filed in this case, bearing a date of

February 4, 2010, is extremely premature yet no less timely. See, e.g., Myers

v. Sullivan, 916 F.2d 659, 678-679 n.20 (11th Cir. 1990) (“Even a premature

motion is considered timely.”).

3. 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

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expended on the litigation multiplied by a reasonable hourly rate.’” Watford

v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985) (EAJA), quoting Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)(§

1988); see Jean v. Nelson, 863 F.2d 759, 772-773 (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, 110 S.Ct. 2316, 110 L.Ed.2d 134

(1990).

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

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properly billed to one's adversary pursuant to

statutory authority.”

Hensley, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (citations

omitted); see also id., at 437, 103 S.Ct. at 1941 (“[T]he fee applicant bears the

burden of establishing entitlement to an award and documenting the

appropriate hours expended and hourly rates.”); 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.”); Norman v. Housing Authority, 836 F.2d 1292, 1301 (11th Cir.

1988) (“Excluding excessive or otherwise unnecessary hours under the rubric

of’‘billing judgment’ means that a lawyer may not be compensated for hours

spent on activities for which he would not bill a client of means who was

seriously intent on vindicating similar rights, recognizing that in the private

sector the economically rational person engages in some cost benefit

analysis.”). 

4. In Norman, supra, the Eleventh Circuit indicated that “the

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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.” 836 F.2d at 1306. 

5. Because the defendant does not oppose the fee petition, the

Court finds that plaintiff’s counsel reasonably spent 15.5 hours on legal tasks

in this case.

6. With respect to a determination of the hourly rate to apply in a

given EAJA case, for services performed by attorneys, the express language

of the Act, as amended by the Contract with America Advancement Act of

1996, 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) (Cum.Supp. 1997).

7. In Meyer v. Sullivan, 958 F.2d 1029 (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

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2 “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. 

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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] per hour, is to determine whether the

court should adjust the hourly fee upward from

$[125] to take into account an increase in the cost

of living, or a special factor.

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

8. For years, the prevailing market rate in the Southern District of

Alabama was $125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-

RV-C; Boggs v. Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L.

This Court adjusted that rate in 2007 to account for the increase in the cost of

living. Lucy v. Barnhart, CA 06-0147-C, Doc. 32. More specifically, the Court

has adopted the following formula to be used in calculating all future awards

of attorney’s fees under the EAJA: “‘($125/hour) x (CPI-U Annual Average

“All Items Index”, South Urban, for month and year of temporal midpoint2

)/

152.4, where 152.4 equals the CPI-U of March 1996, the month and year in

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which the $125 cap was enacted.’” (Id. at 11, quoting Doc. 31, at 2) 

9. The temporal midpoint in this case was October 15, 2009, the

complaint having been prepared on or about July 22, 2009 (compare Doc. 18,

¶ 17 with Doc. 1) and the Court having entered its order and judgment on

January 7, 2010 (Docs. 16-17). The CPI-U for October of 2009 was 209.292.

Plugging the relevant numbers into the foregoing formula renders the

following equation: $125x209.292/152.4. Completion of this equation renders

an hourly rate of $171.66. 

10. In consideration of the foregoing, the plaintiff should be awarded

an attorney’s fee in the amount of $2,660.73 under the EAJA for the 15.5

hours her attorney spent performing work traditionally performed by attorneys

in social security cases. 

11. Plaintiff also seeks reimbursement for the $350.00 filing fee paid

on her behalf when the complaint was filed on July 22, 2009. (See Docket

Sheet Entry for July 22, 2009) It is clear to the undersigned that court costs

are compensable under the Equal Access to Justice Act, Davis v. Apfel, 2000

WL 1658575, *4 (M.D. Fla. 2000) (“The EAJA also authorizes the award of

‘costs’ and ‘expenses.’ 28 U.S.C. § 2412(a)(1) & (d)(1)(A). It is undisputed

that Davis incurred $150.00 in costs in the form of the filing fee. She is entitled

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to recover this amount.”); see also Huitt v. Apfel, 2000 WL 726914, *3 (S.D.

Ala. 2000) (“[P]laintiff is entitled to court costs of $150.00[.]”), and, therefore,

she is entitled to recover the $350.00 filing fee paid in this case. The filing fee

portion of the EAJA award is to be reimbursed from the Judgment Fund

administered by the United States Department of Treasury. See Reeves v.

Barnhart, 473 F.Supp.2d 1173, 1174 (M.D. Ala. 2007) (“The Commissioner

proposed Plaintiff be compensated for the filing fee from the Judgment Fund

administered by the United States Treasury Department. [] The court ordered

that fees be paid to Plaintiff as recommended by the Commissioner.”). 

CONCLUSION

The Court ORDERS that plaintiff be awarded attorney’s fees in the

amount of $2,660.73 under the Equal Access to Justice Act, representing

compensation for 15.5 hours of service by Gilbert B. Laden, Esquire, at the

cost-of-living-adjusted rate of $171.66 an hour, and court costs of $350.00.

The total EAJA award due in this case is $3,010.73.

DONE and ORDERED this the 22nd day of February, 2010.

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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