IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DORIS McGARY, *

 *

Plaintiff, *

 *

vs. * Civil Action No.05-00408-KD-B

 *

JO ANNE B. BARNHART, *

Commissioner of * 

Social Security, *

 *

ORDER

This matter is before the Court on Petitioner's Application

For Attorney's Fees Under The Equal Access To Justice Act (Doc.

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

Petitioner should receive a reasonable attorney's fee in the amount

of $1,781.25.

I. Findings Of Fact

1. Plaintiff commenced this action on July 13, 2005 (Docs.

1, 2). On September 21, 2006, this Court entered Judgment, and

reversed and remanded this cause to the Commissioner of Social

Security for further proceedings. (Docs. 20, 21).

2. Petitioner's application for attorney's fees was filed on

September 29, 2006. (Doc. 22). In the application, Petitioner

requests an attorney's fee award of $2,235.40. (Id.) The

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“[A] party who wins a sentence-four remand order is a prevailing

party.” Shalala v. Schaefer, 509 U.S. 292, 302 (1993). 

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 (30) day clock did not begin to run in

this action until this Court’s Order of Judgment dated September 21, 2006

(Docs. 20, 21) became final, which would have occurred at the end of the sixty

(60) days for appeal provided under Fed. R. App. P. 4(a)(1). See Shalala, 509

U.S. at 302. Because Petitioner’s motion was filed on September 29, 2006, 

(Doc. 22), it is found to be timely filed.

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attorney's fee request represents a total 14.25 hours, at an hourly

rate of $156.87 per hour, for attorney time spent representing

Plaintiff in this Court. (Id.)

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

and states that it objects only to Petitioner’s proposed $156.87

hourly rate, because it exceeds the prevailing EAJA hourly rate cap

of $125.00 per hour. (Doc. 24).

II. Conclusions of Law

1. The Equal Access to Justice Act (EAJA) 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). The Commissioner does not dispute the issues of

prevailing party status,1 timeliness,2 or substantial justification.

2. The U.S. Supreme Court has indicated that "the most

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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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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). 

3. The EAJA (as amended)3 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.) 

4. 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

Case 1:05-cv-00408-KD-B Document 25 Filed 01/18/07 Page 3 of 7
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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). 

5. 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. 

6. In the case sub judice, Plaintiff argues that an increase

in the cost of living has occurred, thus justifying an hourly rate

of $156.87; however, he has cited no cases from this district in

which a fee in excess of the $125.00 cap was awarded. Moreover,

the Court's own research has revealed that $125.00 per hour is the

going rate in this District for social security awards. See, e.g.,

Boone v. Apfel, CV 99-0965-CB-L (August 20, 2001) (adopting the

Magistrate Judge's recommendation that the prevailing market rate

be raised from $117.00 to the EAJA cap of $125.00); Willits v.

Massanari, CV 00-0530-RV-C (same); and Boggs v. Massanari, CV 00-

Case 1:05-cv-00408-KD-B Document 25 Filed 01/18/07 Page 4 of 7
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See also Pierce v. Underwood, 487 U.S. 552, 571-572 (1987) (holding

that Congress determined that $125.00 per hour is "quite enough" public

reimbursement for Social Security counsel under EAJA); Waller v. Commissioner

of Social Security, CV 01-0253-BH-L (Jan. 21, 2003). 

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0408-P-C (same). Further, while the district court has authority

to increase the fee, it is not required to do so.4 Id.; Hall v.

Shalala, 50 F.3d 367, 369 (5th Cir. 1995), aff'd., 50 F.3d 367,

reh'g den., 62. F.3d 398 (5th Cir. 1995). As aptly noted by the

Fifth Circuit, the statutory cap serves to "ensure an adequate

source of representation" and to minimize the cost of

representation to tax payers - the dual purposes of the EAJA. Id.

at 369-370. Thus, based on the record before the Court, the

undersigned finds that the requested hourly rate of $156.87 is not

justified, and that the current $125.00 rate adequately ensures

that the purposes of the EAJA are met. Accordingly, the

undersigned recommends a hourly rate of $125.00.

7. Attached to Petitioner’s application is an itemization of

time detailing the description of work performed, the time

expended, and the date on which the work was performed. (Doc. 22

at Exhibit 3). The undersigned has reviewed this document and the

Commissioner’s response, and finds that, under the circumstances,

and given the usual number of hours billed by attorneys in similar

actions, the Petitioner is entitled to an attorney’s fee in the

amount of $1,781.25, representing 14.25 hours of attorney time

expended representing Plaintiff in federal court at the hourly rate

of $125.00. See, e.g., Coleman v. Apfel, 2000 WL 1367992 (S.D.

Case 1:05-cv-00408-KD-B Document 25 Filed 01/18/07 Page 5 of 7
Ala. Aug. 30, 2000).

III. CONCLUSION

Therefore, upon consideration of the pertinent pleadings, the

undersigned Magistrate Judge RECOMMENDS that Petitioner’s

Application for Attorney's Fees Pursuant to the Equal Access to

Justice Act be DENIED in part and GRANTED in part as follows: the

EAJA award should be limited to the EAJA rate of $125.00 per hour,

thereby resulting in an award of $1,781.25 for 14.25 attorney hours

spent representing Plaintiff in connection with this action.

The attached sheet contains important information regarding

objections to the report and recommendation of the undersigned

Magistrate Judge.

DONE this 17th day of January, 2007.

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00408-KD-B Document 25 Filed 01/18/07 Page 6 of 7
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 ten 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)©); 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 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. Opposing party’s response to the objection. Any opposing party may

submit a brief opposing the objection within ten (10) 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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