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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNETH A. WRIGHT, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-0465-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

On October 17, 2016, Plaintiff Kenneth A. Wright (hereinafter, “the Plaintiff”) 

filed and served an Application for Attorney Fees under the Equal Access to Justice 

Act, 28 U.S.C. § 2412 (“EAJA”) and Memorandum in Support thereof (Docs. 28, 29), 

requesting an award of $1,408.29 in attorney’s fees from the Defendant Commissioner 

of Social Security. On October 25, 2016, the Commissioner filed and served a response 

stating that she does not oppose the motion or the amount requested. Upon 

consideration, the Court finds the Plaintiff’s EAJA fee application (Doc. 28) is due to be 

GRANTED.

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I. Analysis

“The EAJA provides that the district court ‘shall award to the prevailing party 

other than the United States fees and other expenses ... incurred by that party in any 

civil action (other than cases sounding in tort), including proceedings for judicial review 

 1 By the consent of the parties (see Doc. 18), the Court has designated the undersigned 

United States Magistrate Judge to conduct all proceedings and order the entry of judgment 

in this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (See

Doc. 19).

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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.’ ” Newsome v. Shalala, 8 F.3d 775, 777 (11th 

Cir. 1993) (quoting 28 U.S.C. § 2412(d)(1)(A)-(B)) (footnotes omitted). “[T]hree 

statutory conditions must be satisfied before a district court can award EAJA attorney's 

fees. First, the claimant must file an application for fees within thirty days of final 

judgment in the action... Second, assuming the fee application was timely filed, the 

claimant must qualify as a prevailing party... Finally, if the claimant is a prevailing 

party who timely filed an EAJA fee application, then the claimant is entitled to receive 

attorney's fees unless the government can establish that its positions were 

substantially justified or that there exist special circumstances which countenance 

against the awarding of fees.” Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990) 

(citation and quotation marks omitted).

A. Timeliness

“The Equal Access to Justice Act (‘EAJA”’) provides that a ‘party seeking an 

award of fees and other expenses shall, within thirty days of final judgment in the 

action, submit to the court an application for fees and other expenses....” 28 U.S.C. § 

2412(d)(1)(B) (1982). It is settled that a ‘final judgment’ means that the judgment is 

final and not appealable. 28 U.S.C. § 2412(d)(2)(G).” United States v. J.H.T., Inc., 872 

F.2d 373, 375 (11th Cir. 1989). “[T]his timely filing requirement is jurisdictional in 

nature; that is, a claimant's failure to file an EAJA application within thirty days of a 

final judgment no longer appealable precludes the district court from considering the 

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merits of the fee application.” Newsome, 8 F.3d at 777 (citing Myers, 916 F.2d at 672–

73).

Where, as here, “the district court enters a ‘sentence four’ remand order[ under 

42 U.S.C. § 405(g)], that judgment is appealable.” Id. at 778. “[W]hen a remand was 

pursuant to sentence four, the 30–day filing period for applications for EAJA fees 

‘begins after the final judgment (‘affirming, modifying, or reversing’) is entered by the 

[district] court and the appeal period has run, so that the judgment is no longer 

appealable.’ ” Id. (quoting Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).

The Court entered its “sentence four” remand order and judgment on February 

26, 2016. (See Docs. 21, 22). Because a United States officer sued in an official capacity 

is a party to this action, the time to appeal that judgment expired after sixty (60) days. 

See Fed. R. App. P. 4(a)(1)(B), 26(a)(1)(C). However, “[i]f a party timely files in the district 

court a [motion to alter or amend] under the Federal Rules of Civil Procedure, the time to file an 

appeal runs for all parties from the entry of the order disposing of the last such remaining 

motion. See Fed. R. App. P. 4(a)(4)(A)(iv). In this case, the Commissioner timely filed a 

Motion to Alter pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 23). This 

Court denied that motion on August 1, 2016. (Doc. 27). Thus, the judgment became no 

longer appealable after September 30, 2016. See Fed. R. App. P. 26(a)(1)(C). Because 

the Plaintiff filed her EAJA fee application on October 17, 2016, the application is 

timely, and the Court has jurisdiction to consider its merits.

B. Prevailing Party

In this action, the Plaintiff won a remand of a final decision of the Commissioner 

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under sentence four of 42 U.S.C. § 405(g), thus making her a “prevailing party” entitled 

to EAJA fees. See Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). “Courts have 

routinely awarded EAJA attorney’s fees to claimants in Social Security cases who 

satisfy the statutory conditions.” Newsome, 8 F.3d at 777. See also Myers, 916 F.2d at 

666 (“Since the EAJA's enactment, the vast majority of EAJA awards have gone to 

claimants who succeeded in challenging contrary benefits decisions made by the 

Secretary of Health and Human Services.”).

C. “Substantially Justified”/Special Circumstances

“The government’s position is substantially justified under the EAJA when it is 

justified to a degree that would satisfy a reasonable person—i.e. when it has a 

reasonable basis in both law and fact. The government bears the burden of showing 

that its position was substantially justified.” United States v. Jones, 125 F.3d 1418, 

1425 (11th Cir. 1997) (citations and quotations omitted).

The Commissioner has not attempted to show that her position was 

substantially justified and indeed does not oppose an award of EAJA fees to the 

Plaintiff. (See Doc. 32). Given the Commissioner’s position, and there being apparent 

from the record no special circumstances which countenance against the awarding of 

fees, the Court finds that the Plaintiff is entitled to an award of fees under EAJA.

However, 

[t]he EAJA further provides:

The amount of fees awarded ... shall be based upon prevailing 

market rates, for the kind and quality of services furnished except 

that ...

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(ii) 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)(ii) (emphasis added).

In Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992), [this Circuit] 

recognized a two-step process for determining the appropriate hourly rate 

to be applied in calculating attorney's fees under the Act. First, the 

district court must “determine the market rate for ‘similar services 

[provided] by lawyers of reasonably comparable skills, experience, and 

reputation.’ ” Id. (citation omitted). “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-

34.

Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. May 9, 2007) (per 

curiam) (unpublished).

The Plaintiff requests an award of fees “based upon an hourly rate of $190.31 per 

hour for 7.40 hours of work on this case in federal court.” (Doc. 28 at 2). The Court 

finds the number of billed hours (7.40) to be reasonable and finds the requested rate to 

be an appropriate market rate for similar services provided by lawyers of reasonably 

comparable skills, experience, and reputation.2 Moreover, the upward adjustment is 

justified under the formula from this Court’s decision in Lucy v. Astrue, which is often 

used to determine prevailing market rates for EAJA applications.

The prevailing market rate for social security cases in the Southern 

District of Alabama has been adjusted to take into account an increase in 

the cost of living. Lucy v. Astrue, CV 06–147–C, 2007 U.S. Dist. LEXIS 

 2 “The court...is itself an expert on the question and may consider its own knowledge and 

experience concerning reasonable and proper fees and may form an independent judgment 

either with or without the aid of witnesses as to value.” Norman v. Hous. Auth. of City of 

Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quotation omitted).

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97094 (S.D. Ala. July 5, 2007). In Lucy, the following formula, based on 

the CPI, was utilized:

($125/hour) x (CPI–U[3] 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 *12. The “temporal midpoint” is calculated by counting the number 

of days from the date that the claim was filed to the date of the 

Magistrate or District Judge's Order and Judgment. Id. at *5–6.

Winters v. Astrue, Civil Action No. 11-00261-CB-B, 2012 WL 1565953, at *2 (S.D. Ala. 

Apr. 9, 2012), report and recommendation adopted, 2012 WL 1556652 (S.D. Ala. Apr. 

30, 2012).

The Complaint in this action was filed on October 6, 2014, and the Court’s 

Remand Order and Judgment were entered on February 26, 2016. The number of days 

between those two dates is 508; thus the “temporal midpoint” between those two dates 

falls in June, 2015. The relevant CPI–U for June 2015 was 232.026. Plugging the 

relevant numbers into the foregoing formula renders the following equation: $125 x 

232.026 / 152.4. This calculation yields an hourly rate, adjusted for “cost of living” 

increases, of $190.31, which the Court finds to be an appropriate hourly rate under 

EAJA to take into account increases in cost of living. 

Thus, the Court will award attorney’s fees under EAJA in the amount of 

$1,408.29 (i.e. $190.31 x 7.4).

II. Conclusion

In accordance with the foregoing analysis, it is ORDERED and ADJUDGED 

 3 Consumer Price Index for All Urban Consumers, as determined by the Bureau of Labor 

Statistics of the United States Department of Labor (http://www.bls.gov/cpi/tables.htm).

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that the Plaintiff’s Application for Attorney Fees under EAJA (Doc. 28) is GRANTED

and that the Plaintiff is awarded from the Defendant Commissioner $1,408.29 in 

attorney’s fees.4

DONE and ORDERED this the 27th day of October, 2016.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 4 Unless a party requests one, no separate judgment regarding attorney’s fees shall be 

forthcoming. See Fed. R. Civ. P. 58(a)(3) (judgment need not be set out in a separate 

document for an order disposing of a motion for attorney’s fees).

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