IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

STANLEY D. GILDERSLEEVE, : 

 : 

Plaintiff, : 

 : 

vs. : CIVIL ACTION 09-0505-M 

 : 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

 : 

Defendant. : 

 MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff's attorney=s 

Application for Attorney Fees Under the Equal Access to Justice 

Act, with supporting documentation (Doc. 25) and Defendant's 

Response to Plaintiff's Motion for Award of Attorney=s Fees 

Pursuant to the Equal Access to Justice Act (Doc. 26). After 

consideration of the pertinent pleadings, it is ORDERED that the 

Application be GRANTED, as agreed between the parties, and that 

Plaintiff=s attorney, Byron A. Lassiter, be AWARDED an EAJA 

attorney's fee in the amount of $3,200.001

 

 

1 In Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1509 

(11th Cir. 1988), the Court stated: “It is readily apparent that 

the party eligible to recover attorneys’ fees under the EAJA as 

part of its litigation expenses is the prevailing party.” See 

also, Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir. 2008) (“We 

conclude the EAJA means what it says: attorney’s fees are 

awarded to the ‘prevailing party,’ not the prevailing party’s 

attorney.”) However, in this action, Mr. Lassiter has attached 

to the Application for Attorney Fees a Limited Power of Attorney 

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signed by Plaintiff assigning the EAJA Fee to counsel and 

(Attachment 2 to Doc. 25). Therefore, it is ORDERED that the 

EAJA fee be paid directly to Plaintiff’s attorney.

Plaintiff filed this action on August 6, 2009 (Doc. 1). On 

March 8, 2010, the undersigned Judge entered a Memorandum Opinion 

and Order, reversing the decision of the Commissioner, and 

remanding this action for further proceedings consistent with the 

Memorandum Opinion (Doc. 23). Judgment was entered in favor of 

Plaintiff and against Defendant (Doc. 24). 

On May 11, 2010, Byron A. Lassiter, counsel for Plaintiff, 

filed an Application for Attorney Fees Under the Equal Access to 

Justice Act, in which he requests a fee of $3,647.03, computed at 

an hourly rate of $172.03 for 21.2 hours spent in this Court 

(Doc. 25). Defendant in his Response filed May 24, 2010, stated 

that the parties, through counsel, had agreed to a compromise 

settlement of Plaintiff’s request for attorney fees in the amount 

of $3,200.00 (Doc. 26). 

 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 

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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 

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

2631, that the fee motion was timely filed; however, he does not 

concede that the original administrative decision denying 

benefits was not substantially justified (Doc. 26). This issue 

is moot since the parties have settled this fee petition. 

The EAJA, like 42 U.S.C. ' 1988, is a fee-shifting statute. 

 The Supreme Court has indicated that A>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 

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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 

Areasonably 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, 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 attorney=s 

Application and supporting documentation, and after consideration 

of the reasonableness of the hours claimed, finds that 

Plaintiff=s counsel=s time expended in prosecuting this action for 

a total of 21.2 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 

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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). 

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 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)2

. 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 

 2

 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). 

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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 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. 

Since 2001, the prevailing market rate in the Southern 

District of Alabama has been $125.00 per hour. See e.g., Smith 

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

Square v. Halter, Civil Action 00-0516-BH-L (April 12, 2001). 

However, in 2007, in an action before Judge Cassady, a formula 

was approved and used to adjust the prevailing market hourly rate 

to account for the ever-increasing cost of living. Lucy v. 

Barnhart, CA 06-0147-C (July 5, 2007). As set out in Lucy, the 

formula to be used in calculating all future awards of attorney=s 

fees under the EAJA is: A>($125/hour) x (CPI-U Annual Average AAll 

Items Index@, South Urban, for month and year of temporal 

midpoint3

)/152.4, where 152.4 equals the CPI-U of March 1996, the 

 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 

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month and year in which the $125 cap was enacted.=@ (Id. At 11, 

quoting Doc. 31, at 2). The undersigned also adopts this formula 

in EAJA fee petition actions for use in arriving at the 

appropriate hourly rate. 

The temporal midpoint in this action was November 21, 2009, 

the complaint having been filed on August 6, 2009 (Doc. 1), and 

the Court having entered its Order and Judgment on March 8, 2010 

(Docs. 25, 26). The CPI-U for November 2009 was 209.738. 

Plugging the relevant numbers into the foregoing formula renders 

the following equation: $125.00 x 209.738/152.4. Completion of 

this equation renders an hourly rate of $172.03. 

 In conclusion, it is ORDERED that Plaintiff=s attorney=s 

Application is hereby GRANTED, as agreed between the parties, and 

that Plaintiff=s attorney, Byron A. Lassiter, is hereby AWARDED

an EAJA attorney's fee in the amount of $3,200.00. 

DONE this 12th day of July, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

 

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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