IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES H. GOSSARD, :

Plaintiff, :

vs. : CA 14-0395-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security, 

:

Defendant.

MEMORANDUM OPINION AND ORDER

This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule 54(d)(2)(A) 

of the Federal Rules of Civil Procedure, on plaintiff’s motion for an award of attorney’s 

fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 23; see also 

Doc. 24.) 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 

$1,023.33 under the EAJA for legal services rendered by his attorney in this Court, see 

Astrue v. Ratliff, 560 U.S. 586, 592 & 593, 130 S.Ct. 2521, 2526 & 2526-2527, 177 L.Ed.2d 91 

(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 court shall ‘give 

or assign by . . . judicial determination’ to the ‘prevailing party’ (here, Ratliff’s client 

Kills 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 

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

litigant[.]”); Brown v. Astrue, 271 Fed.Appx. 741, 743 (10th Cir. Mar. 27, 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 and court costs of $400.00, for a total EAJA 

award of $1,423.33.2

FINDINGS OF FACT

On May 29, 2015, 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. 22; see also Doc. 21.) The motion for 

an award of attorney’s fees and expenses under the EAJA was filed on August 12, 2015

(Doc. 23), seventy-five (75) days after entry of final judgment (compare id. with Doc. 22). 

In the application, plaintiff requests attorney’s fees in the amount of $1,023.33 to 

compensate his attorney for the time (5.50 hours) spent representing him before this 

Court as of the date of the filing of the fee application (see Doc. 23, Time Itemization), as 

well as the filing fee paid of $400.00 (Doc. 23, at 2). The Commissioner of Social Security 

 1 As explained above, the attorney fees awarded herein are awarded to the 

plaintiff. However, following entry of this fee award, the government certainly can evaluate the 

propriety of directing payment to Mr. Kemmerly pursuant to any assignment of the right to 

receive fees executed by plaintiff which is subsequently supplied to the government. See Ratliff, 

supra, 560 U.S. at 597, 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 right to receive fees to the attorney.’”).

2 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a 

judgment entered by a magistrate judge shall be taken directly to the United States court of 

appeals for this judicial circuit in the same manner as an appeal from any other judgment of this 

district court.”).)

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timely filed a response to plaintiff’s motion on August 26, 2015, and notes therein that 

she does not oppose the motion and agrees to pay the sums requested by plaintiff in his 

motion. (Doc. 26.)

CONCLUSIONS OF LAW

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 EAJA3 and that the position of the United States in this case was not 

substantially justified, given the government’s implicit concession in this regard (see

Doc. 26).

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 29, 2015 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 28, 2015. The motion filed in this case (Doc. 23), bearing a date of August 12, 2015, 

is timely since it was filed within thirty (30) days of July 28, 2015.

 3 “[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). 

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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 

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 

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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 of City of Montgomery, 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 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.”). 

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. Because the defendant interposes no objection whatsoever to plaintiff’s EAJA 

application (see Doc. 26), the Court finds that plaintiff’s counsel reasonably spent 5.50

hours on legal tasks in this case. 

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). 

In Meyer v. Sullivan, 958 F.2d 1029 (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.

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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). 

For years, the prevailing market rate in the Southern District of Alabama was 

$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. However, 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 midpoint )/ 

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) 

The temporal midpoint in this case was January 9, 2015, the complaint having 

been prepared and filed on August 26, 2014 (compare Doc. 1 with Doc. 23, Time 

Itemization) and the Court having entered its order and judgment on May 29, 2015

(Docs. 21-22). The CPI-U for January of 2015 was 226.855. Plugging the relevant 

numbers into the foregoing formula renders the following equation: 

$125x226.855/152.4. Completion of this equation renders an hourly rate of $186.06. 

In consideration of the foregoing, the plaintiff is to be awarded an attorney’s fee 

in the amount of $1,023.33 under the EAJA for the 5.50 hours his attorney spent 

performing work traditionally performed by attorneys in social security cases.

Plaintiff also seeks reimbursement for the $400.00 filing fee paid on his behalf 

following the denial of his motion to proceed without prepayment of costs and fees. 

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(Compare Doc. 4 with Doc. 3) It is clear to the undersigned that court costs are 

compensable under the Equal Access to Justice Act, Davis v. Apfel, 2000 WL 1658575, *4 

(M.D. Fla. Aug. 14, 2000) (“The EAJA also authorizes the award of ‘costs’ and 

‘expenses.’ 28 U.S.C. § 2412(a)(1) & (d)(1)(A). It is undisputed that Davis incurred 

$150.00 in costs in the form of the filing fee. She is entitled to recover this amount.”); see 

also Huitt v. Apfel, 2000 WL 726914, *3 (S.D. Ala. May 25, 2000) (“[P]laintiff is entitled to 

court costs of $150.00[.]”), and, therefore, he is entitled to recover the $400.00 filing fee 

paid in this case. The filing fee portion of the EAJA award is to be reimbursed from the 

Judgment Fund administered by the United States Department of Treasury. See Reeves v. 

Barnhart, 473 F.Supp.2d 1173, 1174 (M.D. Ala. 2007) (“The Commissioner proposed 

Plaintiff be compensated for the filing fee from the Judgment Fund administered by the 

United States Treasury Department. [] The court ordered that fees be paid to Plaintiff as 

recommended by the Commissioner.”), aff’d sub nom. Reeves v. Astrue, 526 F.3d 732 (11th 

Cir.), cert. denied, 555 U.S. 1072, 129 S.Ct. 724, 172 L.Ed.2d 730 (2008). 

CONCLUSION

The Court ORDERS that plaintiff be awarded attorney’s fees in the amount of 

$1,023.33 under the Equal Access to Justice Act, representing compensation for 5.50

hours of service by Colin E. Kemmerly, Esquire, at the cost-of-living-adjusted rate of 

$186.06, and court costs of $400.00; the total EAJA award due and owing plaintiff is 

$1,423.33.

DONE and ORDERED this the 27th day of August, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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