IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LAKEISA GRIFFIN, :

Plaintiff, :

vs. : CA 15-0189-WS-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Court for entry of a report and recommendation, 

pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 54(d)(2)(D) of the Federal Rules of Civil 

Procedure, on plaintiff’s unopposed motion for an award of attorney’s fees under the 

Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 21.) 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 $3,603.92 under the EAJA for legal services 

rendered by her 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 

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fees directly to the attorney. For the reasons we 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

FINDINGS OF FACT

On January 14, 2016, 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. 20; see also Doc. 19.) The motion for 

an award of attorney’s fees and expenses under the EAJA was filed on March 3, 2016

(Doc. 21), forty-nine (49) days after entry of final judgment (compare id. with Doc. 20). In 

the motion, plaintiff requests attorney’s fees in the amount of $3,693.30 to compensate 

her attorney for the time (19.50 hours) spent representing her before this Court as of the 

date of the filing of the fee application. (See Doc. 21, Exhibit B, Time Sheet.) Counsel for 

plaintiff has represented in the motion that counsel for the defendant “has no objection 

to th[e] Petition.” (Doc. 21, at ¶ 7.) The undersigned appreciates this representation to 

mean that counsel for the defendant was supplied with a copy of the motion and 

 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 Ms. McPhillips pursuant to the assignment of the right to 

receive fees executed by plaintiff on April 4, 2015 (Doc. 21, Exhibit C, ASSIGNMENT OF EAJA 

FEES). 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.’”).

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attachments before the motion was filed and that defense counsel, Daniel Balsam, 

Esquire, indicated that he had no objection to the hours requested to be compensated or 

the requested hourly rate. (Compare id. with Attached Brief.)

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 EAJA2 and that the position of the United States in this case was not 

substantially justified, given that it was the government who requested a sentence four 

remand in this case (see Doc. 17).

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 will not begin to run in this case until this Court’s reversal and remand 

order of January 14, 2016 becomes final, which will occur 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, March 14, 2016. The motion filed in this case (Doc. 21), bearing a date of 

March 3, 2016, is premature yet no less timely. See Myers v. Sullivan, 916 F.2d 659, 678-

679 n.20 (11th Cir. 1990).

 2 “[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. Although plaintiff’s EAJA motion is unopposed by the defendant (see Doc. 21, at ¶ 

7), this Court has a responsibility to ensure that the fee applicant has exercised billing 

judgment. While, by in large, the undersigned finds that Ms. McPhillips has exercised 

billing judgment, there are at least four entries which reflect excessive or unnecessary 

hours that should have been excised by the applicant. Those entries are the following: 

(1) .2 hours expended on October 20, 2015, for receipt and review of the defendant’s 

motion for extension of time to file reply brief and the undersigned’s order granting the 

defendant’s motion; (2) .1 hours expended on December 17, 2015, for “Motion to 

Remand referral to judge”; (3) .2 hours expended on December 21, 2015, for receipt and 

review of the report and recommendation; and (4) .5 hours expended on January 15, 

2016, for receipt and review of the judgment and order remanding the case to the 

Commissioner. It should suffice to say that all the tasks reflected above could and 

should have been accomplished in much shorter periods of time than reflected on the 

time sheet given the “brief” length of the pleadings referenced—or, in the case of the 

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apparent “tracking” of the Clerk’s Office referral of the defendant’s motion to remand 

to the undersigned, not billed at all—and, therefore, it is recommended that the Court 

reimburse plaintiff for 30 minutes of attorney work performed on the foregoing dates 

rather than the “combined” hour requested. Accordingly, the undersigned recommends 

that plaintiff be reimbursed for 19 hours of attorney work performed, as opposed to the 

19.5 hours requested.

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.

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.

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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 August 26, 2015, the first billable entry 

made by the fee applicant bearing a date of April 6, 2015 (see Doc. 21, Exhibit B, Time 

Sheet) and the Court having entered its order and judgment on January 14, 2016 (Docs. 

19-20). The CPI-U for August of 2015 was 231.260. Plugging the relevant numbers into 

the foregoing formula renders the following equation: $125x231.260/152.4. Completion 

of this equation renders an hourly rate of $189.68. 

In consideration of the foregoing, the undersigned recommends that plaintiff be 

awarded an attorney’s fee in the amount of $3,603.92 under the EAJA for the 19 hours 

her attorney spent performing work traditionally performed by attorneys in social 

security cases. 

CONCLUSION

The Magistrate Judge RECOMMENDS that plaintiff be awarded attorney’s fees 

in the amount of $3,603.92 under the Equal Access to Justice Act, representing 

compensation for 19 hours of service by Rose A. McPhillips, Esquire, at the cost-ofliving-adjusted rate of $189.68.

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. 

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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 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 the 7th day of March, 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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