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IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

JOHNNY THORNTON, : 

 Plaintiff, : 

vs. : CA 09-0461-C 

MICHAEL J. ASTRUE, : 

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)(D) of the Federal Rules of Civil Procedure, on plaintiff’s application for 

an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 

U.S.C. § 2412 (Doc. 28). 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 $1,800.00 under the EAJA for legal services rendered by his 

attorney in this Court. See Astrue v. Ratliff, U.S. , 2010 WL 2346547, *4 & 

*5 (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 Ree) attorney’s fees in the amount sought and 

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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 have explained, the statute’s pain text 

does the opposite-it ‘awards’ the fees to the litigant[.]”). 

FINDINGS OF FACT

 1. On April 19, 2010, 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. 27; see also 

Doc. 26) 

 2. The motion for an award of attorney’s fees under the EAJA was 

filed on June 18, 2010 (Doc. 28), sixty (60) days after entry of final judgment 

(compare id. with Doc. 27). In the motion, plaintiff requests attorney’s fees in the 

amount of $2,193.38 to compensate his attorney for the time (12.75 hours) spent 

representing him before this Court as of the date of the filing of the fee 

application. (See Doc. 28)

 3. The Commissioner of Social Security filed his response to plaintiff’s 

EAJA application on July 1, 2010 and therein advises the Court that the parties 

have reached a compromise settlement of plaintiff’s request for EAJA fees in the 

amount of $1,800.00 (see Doc. 30).

CONCLUSIONS OF LAW

 1. The Equal Access to Justice Act requires a district court to “award to 

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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 EAJA1

 and that the position of the 

United States in this case was not substantially justified.

 2. The EAJA requires a prevailing party to file a motion 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 April 19, 2010 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, June 18, 2010. The 

application filed in this case, bearing a date of June 18, 2010, is obviously timely.

 3. 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, 

 

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 “[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).

Case 2:09-cv-00461-C Document 31 Filed 07/21/10 Page 3 of 8
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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 goodfaith 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 

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unnecessary.’ Courts are not authorized to be generous with 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, 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.”). 

 4. 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. 

 5. Given the compromise settlement (Doc. 30), it is apparent that the 

parties have agreed that plaintiff’s counsel spent less than the 12.75 hours 

reflected on the itemization attached to the application for fees on legal tasks in 

this case. 

 6. 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 

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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).

 7. 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).

 8. 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-RVC; Boggs v. Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L. 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 midpoint2

)/ 152.4, where 152.4 

 

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 “The appropriate endpoint for computing the cost of living adjustment is the 

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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) 

 9. The temporal midpoint in this case was November 26, 2009, the 

complaint having been prepared on or about July 6, 2009 (see Doc. 28, 

Professional Services) and the Court having entered its order and judgment on 

April 19, 2010 (Docs. 26-27). The CPI-U for November of 2009 was 209.738. 

Plugging the relevant numbers into the foregoing formula renders the following 

equation: $125x209.738/152.4. Completion of this equation renders an hourly rate 

of $172.03. 

 10. It is impossible to tell from the compromise settlement whether the 

parties utilized the foregoing hourly rate to determine the amount of attorney’s 

fees plaintiff should be awarded under the EAJA. Nevertheless, the Court’s 

decision reflects the foregoing analysis since it is this analysis that normally 

controls in EAJA fee cases and presumably played a part in the parties reaching a 

compromise settlement in this case. 

CONCLUSION

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

 

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, CA 06-0147-C, Doc. 31, at 3. 

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of $1,800.00 under the Equal Access to Justice Act.

DONE and ORDERED this the 21st day of July, 2010.

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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