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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OWEN E. McDONNELL, JR., :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 14-0141-M

 :

CAROLYN W. COLVIN, :

Commission 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 (hereinafter EAJA), with supporting Documentation (Doc. 

199), and Defendant’s Response to Plaintiff’s Application for 

Attorney Fees (Doc. 20). After consideration of the pertinent 

pleadings, it is ORDERED that the Motion be GRANTED and that 

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

$3,901.15. 

Plaintiff filed this action on March 25, 2014 (Doc. 1). On 

October 8, the undersigned Judge entered a Memorandum Opinion 

and Order, reversing the decision of the Commissioner, and 

remanding this action for further proceedings (Doc. 17). 

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Judgment was entered in favor of Plaintiff and against Defendant 

on that same day (Doc. 18).

On December 16, 2014, Byron A. Lassiter, Counsel for 

Plaintiff, filed an Application for Attorney Fees Under the 

EAJA, in which he requested a fee of $3,901.15, computed at an 

hourly rate of $190.30 for 20.5 hours spent in this Court (Doc. 

19). Defendant, in her Response filed on December 29, stated 

that she had no objection to the award of fees, but noted that 

payment should be made to Plaintiff rather than to his Attorney 

(Doc. 20).

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 

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, there are three statutory conditions that

must be satisfied before EAJA fees may be awarded under 28 

U.S.C. § 2412. See Myers v. Sullivan, 916 F.2d 659, 666 (11th

Cir. 1990). First, the claimant must file an application for 

fees within the thirty-day period. Second, the claimant must be 

a prevailing party. Third, the Government’s position must not 

be substantially justified. 

 Defendant apparently concedes that Plaintiff became the 

prevailing party when the Court remanded this action, Schaefer, 

509 U.S. 300-302, that the fee motion was timely filed, and that 

the original administrative decision denying benefits was not

substantially justified (Doc. 20).

Having found that the three prerequisites have been 

satisfied, the Court will now discuss the fee to be awarded in 

this action. 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, 1586 (11th Cir. 1985 (EAJA) (quoting Hensley v. 

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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 

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 

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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 20.5 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 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, 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 

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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 

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, 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 the court traditionally has had the power to make such 

an award without the need of further pleadings or an evidentiary 

hearing. Id.

 1

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

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 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 (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, in an action before 

U.S. Magistrate 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, 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: “‘($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.

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

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

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 The temporal midpoint in this action was July 2, 2014, the 

complaint having been filed on March 25, 2014 (Doc. 1), and the 

Court having entered its Memorandum Opinion and Order and 

Judgment on October 8, 2014 (Docs. 17-18). The CPI-U for July 

2014 was 232.013. Plugging the relevant numbers into the 

foregoing formula renders the following equation: $125.00 x 

232.013/152.4. Completion of this equation renders an hourly 

rate of $190.30. This hourly rate for 20.5 hours equals 

$3,901.15.

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

Fees, Counsel for Plaintiff requests that any award of 

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

Plaintiff (Doc. 19). The Government argues that payment should 

only go to the Plaintiff (Doc. 20). 

 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 

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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, McDonnell has specifically given Lassiter a 

limited power of attorney to receive checks on his behalf (Doc. 

19, Exhibit 2). Nevertheless, under the reasoning of Reeves and 

Ratliff, the Court finds that the award should be paid to 

Plaintiff and not to his Attorney.

 In conclusion, it is ORDERED that Plaintiff’s Application 

be GRANTED as set out above and that Plaintiff be AWARDED an 

EAJA Attorney’s fee in the amount of $3,901.15.

DONE this 10th day of February, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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