IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

DWIGHT BOYKIN, : 

Plaintiff, : 

vs. : CA 09-0747-WS-C 

MICHAEL J. ASTRUE, : 

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 an award of attorney’s fees under the Equal 

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 19) 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 $3,996.43 under the EAJA for legal services 

rendered by his attorney in this Court. See Astrue v. Ratliff, 505 U.S. , 130 S.Ct. 2521, 

2526 & 2526-2527 (2010) (“Ratliff [] asserts that subsection (d)(1)(A)’s use of the verb 

‘award’ renders § 2412(d) fees payable directly to a prevailing party’s attorney[.] . . . We 

disagree. . . . The plain meaning of the word ‘award’ in subsection (d)(1)(A) is [] that the 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 1 of 9
2 

court shall ‘give or assign by . . . judicial determination’ to the ‘prevailing party’ (here, 

Ratliff’s client Ree) attorney’s fees in the amount sought and substantiated under, inter 

alia, subsection (d)(1)(B). . . . The fact that the statute awards to the prevailing party fees 

in which her attorney may have a beneficial interest or a contractual right does not 

establish that the statute ‘awards’ the fees directly to the attorney. For the reasons we 

have explained, the statute’s plain text does the opposite-it ‘awards’ the fees to the 

litigant[.]”); see also Brown v. Astrue, 271 Fed.Appx. 741, 743 (10th Cir. 2008) (“The 

district court correctly held that Mr. Brown’s assignment of his right in the fees award to 

counsel does not overcome the clear EAJA mandate that the award is to him as the 

prevailing party, and the fees belong to him. Thus, the district court correctly declined to 

award the fees directly to counsel.”).1

 

FINDINGS OF FACT

1. On May 11, 2010 this Court entered a Rule 58 judgment 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. 18; see also Doc. 17) 

2. The application for an award of attorney’s fees under the EAJA was filed 

on July 19, 2010 (Doc. 19), some sixty-nine (69) days after entry of final judgment 

 

1

 Following entry of this fee award, the government can evaluate the propriety of directing 

payment to Mr. Lassiter pursuant to the Limited Power of Attorney signed by plaintiff. See 

Ratliff, supra, 130 S.Ct. at 2529 (“[T]he Government has since continued the direct payment 

practice only in cases where ‘the plaintiff does not owe a debt to the government and assigns the 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 2 of 9
3 

(compare id. with Doc. 18). In the application, plaintiff requests attorney’s fees in the 

amount of $3,996.43 to compensate his attorney for the time (23.2 hours) spent 

representing him before this Court as of the date of the filing of the fee application. (See

Doc. 19, Professional Services Rendered) 

3. The Commissioner of Social Security filed a response on July 28, 2010, and 

therein solely objects to the payment of attorney’s fees directly to plaintiff’s counsel. (See 

Doc. 21) As heretofore indicated, the award of fees is to plaintiff under the EAJA, not his 

attorney. 

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

the EAJA2

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

justified, the defendant having made no arguments to the contrary (see Doc. 21). 

 

right to receive the fees to the attorney.’”). 

2 A[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). 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 3 of 9
4 

 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 May 11, 2010 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, July 10, 2010. The application filed in this case, bearing a date of July 19, 

2010, is timely since it was filed within thirty days of July 10, 2010. 

 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)(§ 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 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 4 of 9
5 

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 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 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 5 of 9
6 

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. 

 5. Because the defendant interposes no objection to the fee petition in this 

regard, the Court finds that plaintiff’s counsel reasonably spent 23.2 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 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 6 of 9
7 

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 $[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 

has been $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 has adjusted 

that rate 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 

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) 

9. The temporal midpoint in this case was February 12, 2010, the complaint 

 3 AThe 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. 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 7 of 9
8 

having been prepared on November 16, 2009 (Doc. 1) and the Court having entered its 

order and judgment on May 11, 2010 (Docs. 17-18). The CPI-U for February of 2010 was 

210.020. Plugging the relevant numbers into the foregoing formula renders the following 

equation: $125x210.020/152.4. Completion of this equation renders an hourly rate of 

$172.26. 

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

attorney's fee in the amount of $3,996.43 under the EAJA for the 23.2 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 $3,996.43 under the Equal Access to Justice Act, representing compensation 

for the 23.2 hours of service by Byron A. Lassiter, Esquire, at the cost-of-living-adjusted 

rate of $172.26 per hour. 

 The instructions which follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge. 

DONE this the 2nd day of August, 2010. 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 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 

fourteen (14) 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 4 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.

 

4

 Effective December 1, 2009, the time for filing written objections was extended to “14 

days after being served with a copy of the recommended disposition[.]” Fed.R.Cvi.P. 72(b)(2). 

Case 1:09-cv-00747-WS-C Document 22 Filed 08/02/10 Page 9 of 9