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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DOROTHY M. HOLCOMBE, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 15-0028-KD-M

 :

CAROLYN W. COLVIN, :

Commissioner of Social Security, :

 :

Defendant. :

REPORT AND RECOMMENDATION

In this action under 28 U.S.C. § 2412, Plaintiff seeks 

Attorney Fees Under the Equal Access to Justice Act (hereinafter 

EAJA) (Doc. 17); Defendant has filed a Response (Doc. 18). The 

action was referred for report and recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72, and S.D. Ala. Gen.L.R. 

72. After considering the pertinent pleadings, it is

recommended that Plaintiff’s Motion be granted and that 

Plaintiff be awarded an EAJA attorney’s fee in the amount of 

$2,980.04. 

Plaintiff filed this action on January 22, 2015 (Doc. 1). 

On July 23, 2015, the undersigned Judge entered a Memorandum 

Opinion and Order, reversing the decision of the Commissioner, 

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and remanding this action for further proceedings (Doc. 15). 

Judgment was entered in favor of Plaintiff and against Defendant 

(Doc. 16).

On October 12, 2015, Byron A. Lassiter, Plaintiff’s 

Attorney, filed an EAJA Fee Application requesting a fee of 

$2,980.04, computed at an hourly rate of $188.61 for 15.8 hours 

spent in this Court (Doc. 17). Defendant, in her Response filed 

on October 26, 2015, stated that she had no objection to the 

requested fee, noting that payment should be made to Plaintiff 

rather than to her Attorney (Doc. 18).

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). EAJA further requires that a 

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 

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pursuant to Rule 4(a) of the Federal Rules of Appellate 

Procedure. See Shalala v. Schaefer, 509 U.S. 292 (1993).

 As set out above, three statutory conditions must be 

satisfied before EAJA fees may be awarded. See Myers v. 

Sullivan, 916 F.2d 659, 666 (11th Cir. 1990). First, the 

claimant must file a fee application within the thirty-day 

period; also, the claimant must be a prevailing party. Finally, 

the Government’s position must not be substantially justified. 

 Defendant apparently concedes all three EAJA requirements 

(see Doc. 18). The Court finds that they have been met.

 The Court will now discuss the fee to be awarded. EAJA 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, 1586 (11th Cir. 1985 (EAJA) (quoting 

Hensley v. Eckerhartt, 461 U.S. 424, 433 (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 

evidence supporting the hours worked and the 

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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, 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).

 After examining Plaintiff’s Attorneys’ Application, and 

supporting documentation, and considering the reasonableness of 

the hours claimed, the Court finds that the 15.8 hours expended 

in prosecuting this action is reasonable.

 In determining the hourly rate to apply in a given EAJA 

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case, express statutory language provides 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, justified 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.

Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).1 

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Subsequent to Meyer, the cap was raised from $75.00 per hour to 

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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 affidavit of the attorney performing the work. Blum v. 

Stenson, 465 U.S. 886, 895 n.11 (1984). Where the fees or time 

claimed seem expanded or there is lack of documentation or 

testimony in support thereof, the court may make an award on its 

own experience. Norman v. City of Montgomery, 836 F.2d 1292, 

1303 (11th Cir. 1988). Where the documentation is inadequate, 

the court is not relieved of its obligation to award a 

reasonable fee, but, traditionally, it has had the power to make

an award with no need of further pleadings or an evidentiary 

hearing. Id.

 Beginning in 2001, the prevailing market rate in the 

Southern District of Alabama was $125.00 per hour. See, e.g., 

Smith v. Massanari, Civil Action 00-0812-P-M (S.D. Ala. October 

25, 2001); and Square v. Halter, Civil Action 00-0516-BH-L (S.D. 

Ala. April 12, 2001). However, in 2007, U.S. Magistrate Judge 

Cassady fashioned a formula to adjust the prevailing market 

hourly rate to account for the ever-increasing cost-of-living. 

 $125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A). 

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Lucy v. Barnhart, Civil Action 06-0147-C (S.D. Ala. July 5, 2007

(Doc. 32)). As set out in Lucy, the formula to be used in 

calculating all future awards of attorney’s fees under the EAJA 

is as follows: “‘($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 which the $125 cap was enacted.’” (Lucy, Doc. 

32, at p. 11) (quoting Lucy, Doc. 31, at p. 2). The undersigned 

also adopts this formula in EAJA fee petition actions for use in 

arriving at the appropriate hourly rate.

 The complaint was filed on January 22, 2015 (Doc. 1) and 

the Court entered its Memorandum Opinion and Order and Judgment 

on September 23, 2015 (Docs. 15-16), so the temporal midpoint in 

this action was April 23, 2015. The CPI-U for April 2015 was 

229.957. Plugging the relevant numbers into the foregoing 

formula renders the following equation: $125.00 x 

229.957/152.4, the computation of which renders an hourly rate 

of $188.61. This hourly rate for 15.8 hours equals $2,980.04.

 The Court notes that, in the application for Attorney’s 

 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. Civil Action 06-0147-C (S.D. 

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Fees, counsel for Plaintiff requests that any award of 

attorney’s fees be paid to Plaintiff’s attorney rather than to 

Plaintiff (Doc. 17). The Government argues that payment should 

only go to the Plaintiff (Doc. 18). 

 As noted earlier, EAJA allows a Court to make an “award to 

a prevailing party.” 28 U.S.C. § 2412(d)(1)(A). In Panola Land 

Buying Ass’n v. Clark, 844 F.2d 1506, 1509 (11th Cir. 1988), the 

Eleventh Circuit Court of Appeals stated that “[i]t 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.), cert. denied, 555 U.S. 1072 (2008) (“We conclude the 

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

‘prevailing party,’ not to the prevailing party’s attorney”). 

The United States Supreme Court, in the unanimous decision of 

Astrue v. Ratliff, 560 U.S. 586, 589 (2010), held “that a § 

2412(d) fees award is payable to the litigant and is therefore 

subject to a Government offset to satisfy a pre-existing debt 

that the litigant owes the United States,” removing any doubt as 

to whom the award should be paid.

 In this action, Holcombe has stated that the Government can 

 Ala. Doc. 31, at p. 3). 

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pay any fees awarded to her to Attorney Lassiter (Doc. 17, 

Exhibit 2). However, under the reasoning of Reeves and Ratliff, 

the Court finds that the award should be paid to Plaintiff 

Dorothy M. Holcombe and not to her Attorney.

 In conclusion, it is recommended that Plaintiff’s 

Attorney’s Application be granted (Doc. 17) as set out above and 

that Plaintiff be AWARDED an EAJA Attorney’s fee in the amount 

of $2,980.04.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. 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. See 28 U.S.C. 

§ 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

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consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 5th day of November, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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