IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASON T. YOUNG, :

Plaintiff, :

vs. CA 05-0400-CG-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Court for entry of a report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 54(d)(2)(D) of the Federal

Rules of Civil Procedure on plaintiff’s application for attorney’s fees under the

Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 20) 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

$1,537.50 under the EAJA for legal services rendered by his attorney in this

Court. 

FINDINGS OF FACT

1. On March 30, 2006 this Court entered a Rule 58 judgment

reversing and remanding this cause to the Commissioner of Social Security

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 1 of 9
2

pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. (Doc.

19; see also Doc. 18) 

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

June 27, 2006 (Doc. 20), some eighty-nine (89) days after entry of final

judgment (compare id. with Doc. 19). In the application, plaintiff requests

attorney’s fees in the amount of $1,537.50 to compensate his attorney for the

time spent representing him before this Court as of the date of the filing of the

fee application. (See Doc. 20)

3. The Commissioner of Social Security filed a response to

plaintiff’s EAJA fee application on July 11, 2006 and therein states that she

has “no objection to Plaintiff’s Application for Attorney Fees under the Equal

Access to Justice Act in the instant case.” (Doc. 22) 

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

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

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 2 of 9
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

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

EAJA1

 and that the position of the United States in this case was not

substantially justified, the defendant having conceded as much.

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 did not begin to run in this case until

this Court's reversal and remand order of March 30, 2006 became final, which

occurred 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, May

29, 2006. The application filed in this case, bearing a date of June 27, 2006,

is timely since it was filed within thirty days of May 29, 2006.

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

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)(§

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 3 of 9
4

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

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

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 4 of 9
5

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

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. 

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 5 of 9
6

5. Because the defendant interposes no objection whatsoever to the

fee petition, the undersigned does not hesitate in recommending that the Court

find that plaintiff’s counsel reasonably spent 12.3 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

Act.

The first step in the analysis, . . . is to determine

the market rate for "similar services [provided] by

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 6 of 9
7

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. The prevailing market rate in the Southern District of Alabama

has been raised to $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. 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.

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

an attorney's fee in the amount of $1,537.50 under the EAJA for the 12.3 hours

his attorney spent performing work traditionally performed by attorneys in

social security cases. 

CONCLUSION

The Magistrate Judge recommends that plaintiff be awarded attorney's

fees in the amount of $1,537.50 under the Equal Access to Justice Act,

representing compensation for 12.3 hours of service by Byron A. Lassiter,

Esquire, at the market rate of $125.00 an hour.

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 7 of 9
8

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 22nd day of September, 2006.

s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 8 of 9
9

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this 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); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). 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 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. 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 case 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/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00400-CG-C Document 23 Filed 09/22/06 Page 9 of 9