1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

KENNY SAM PIERCE, : 

 : 

 Plaintiff, : 

 : 

vs. : CIVIL ACTION 11-0214-CG-M 

 : 

MICHAEL J. ASTRUE, : 

Commissioner of Social Security,: 

 : 

 Defendant. : 

 REPORT AND RECOMMENDATION

 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. 20), 

and Defendant’s Notice of Intent not to Object to Plaintiff’s 

Petition for Attorney Fees Pursuant to the Equal Access to 

Justice Act, 28 U.S.C. § 2412 (Doc. 22). The action was 

referred for report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). After consideration of the pertinent pleadings, 

it is recommended that the Motion be granted and that Plaintiff 

be awarded an EAJA attorney’s fee in the amount of $2,062.50, 

payable to Plaintiff (Doc. 20). 

 Plaintiff filed this action on April 29, 2011 (Doc. 1). On 

November 9, 2011, the Undersigned Judge entered a Report and 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 1 of 8
2 

Recommendation which recommended that the decision of the 

Commissioner be reversed and that this action be remanded for 

further proceedings (Doc. 17). On November 28, 2011, United 

States District Judge Granade adopted that Report and 

Recommendation as the opinion of the court and judgment was 

entered accordingly (Docs. 18-29). 

 On February 21, 2012, Quinn E. Brock, Counsel for 

Plaintiff, filed this Application in which he requested a fee of 

$2,062.50, computed at an hourly rate of $125.00 for 16.5 hours 

spent in this Court (Doc. 20). Defendant does not oppose an 

award of attorney’s fees under EAJA for the amount requested at 

the hourly rate requested (Doc. 22). 

 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 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 2 of 8
3 

it is entered, which is the time in which an appeal may be taken 

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 

which 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. 

 The Court finds that these three statutory conditions have 

been met. Though Defendant does not concede the third 

requirement (Doc. 22, pp. 1-2), the Court finds, after 

reconsideration of the reasoning given in the Memorandum Opinion 

and Order (Doc. 17), that the Government’s position was not 

substantially justified. 

 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, 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 3 of 8
4 

765 F.2d 1562, 1586 (11th Cir. 1985)(EAJA) (quoting Hensley v. 

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 section, ‘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 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 4 of 8
5 

F.2d 1292, 1301 (11th Cir. 1988). 

 The Court, after examination of Plaintiff’s Attorneys’ 

Application and supporting documentation, finds that Plaintiff’s 

Counsel’s time expended in prosecuting this action for a total 

of 16.5 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). Plaintiff’s 16.5 hours, 

paid at an hourly rate of $125.00, equals $2,062.50. 

 The Court notes that accompanying the application for 

Attorney’s Fees is a Contract for Employment between Pierce and 

Brock wherein EAJA fees are to be paid to Brock (Doc. 20). The 

Government argues that payment should only go to the Plaintiff 

(Doc. 22, p. 2). 

 As noted earlier, EAJA allows a Court to make an “award to 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 5 of 8
6 

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. 2008), cert. denied, 129 S.Ct. 724 (2008) (“We 

conclude the 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, 130 S.Ct. 2521, 2524 (2010), held 

“that a § 2412(d) fees award is payable to the litigant and is 

therefore subject to a Government offset to satisfy a preexisting debt that the litigant owes the United States,” 

removing any doubt as to whom the award should be paid. 

 In this action, Pierce has specifically assigned any EAJA 

award to Brock (Doc. 20, Exhibit 3, § V). However, under the 

reasoning of Reeves and Ratliff, the Court finds that the award 

should be paid to Pierce and not to his Attorney. 

 In conclusion, it is recommended that Plaintiff’s 

Application be granted as set out above and that Plaintiff be 

awarded an EAJA Attorney’s fee in the amount of $2,062.50, 

payable to Plaintiff. 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 6 of 8
7 

 MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

 AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

 AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or 

anything in it must, within fourteen days of the date of service 

of this document, file specific written objections with the 

clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual 

findings of the magistrate judge. See 28 U.S.C. ' 636(b)(1)(C); 

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. 

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The 

procedure for challenging the findings and recommendations of 

the magistrate judge is set out in more detail in SD ALA LR 72.4 

(June 1, 1997), which provides that: 

A party may object to a recommendation entered by a 

magistrate judge in a dispositive matter, that is, a 

matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing 

a AStatement of Objection to Magistrate Judge=s 

Recommendation@ within fourteen days after being served 

with a copy of the recommendation, unless a different 

time is established by order. The statement of 

objection shall specify those portions of the 

recommendation to which objection is made and the 

basis for the objection. The objecting party shall 

submit to the district judge, at the time of filing 

the objection, a brief setting forth the party=s 

arguments that the magistrate judge=s recommendation 

should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the 

original brief submitted to the magistrate judge, 

although a copy of the original brief may be submitted 

or referred to and incorporated into the brief in 

support of the objection. Failure to submit a brief 

in support of the objection may be deemed an 

abandonment of the objection. 

A magistrate judge=s recommendation cannot be appealed to a 

Court of Appeals; only the district judge=s order or judgment can 

be appealed. 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 7 of 8
8 

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. ' 1915 and Fed.R.Civ.P. 72(b), the 

magistrate judge finds that the tapes and original records in 

this action are adequate for purposes of review. Any party 

planning to object to this recommendation, but unable to pay the 

fee for a transcript, is advised that a judicial determination 

that transcription is necessary is required before the United 

States will pay the cost of the transcript. 

DONE this 20th day of March, 2012. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

Case 2:11-cv-00214-CG-M Document 23 Filed 03/20/12 Page 8 of 8