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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

YVONNE KIRKLAND, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00046-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

On March 18, 2016, Plaintiff Yvonne Kirkland (hereinafter, “the Plaintiff”) filed 

and served an Application for Attorney Fees under the Equal Access to Justice Act, 28 

U.S.C. § 2412 (“EAJA”) (Doc. 24), requesting an award of $1,918.60 in attorney’s fees 

from the Defendant Commissioner of Social Security. On April 7, 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. 24) is due to be GRANTED in part and DENIED in part.1

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 

of agency action, brought by or against the United States ..., unless the court finds that 

 1 By the consent of the parties (see Doc. 19), 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. 20).

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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 

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

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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 

17, 2016. (See Docs. 22, 23). 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 from February 17, 2016 (i.e. after April 18, 2016). See Fed. R. App. P. 

4(a)(1)(B), 26(a)(1)(C). Thus, the judgment became no longer appealable after April 18,

2016. See Fed. R. App. P. 26(a)(1)(C). Because the Plaintiff filed her EAJA fee 

application on March 18, 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 

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 

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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 ...

(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 

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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 $189.96 per 

hour for 10.10 hours of work on this case in federal court.” (Doc. 24 at 1; Doc. 24-32). 

After reviewing the timesheet of Plaintiff’s counsel (Doc. 24-2), the Court will not award 

fees for an hour purportedly spent on “review of Order to amend pauperis petition; letter

to client” and “preparation of amended pauperis petition; e-filing of same.” No such 

order was entered in this action, nor was an “amended pauperis petition” filed. The 

Court finds the remaining number of billed hours (9.10) 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.3 Moreover, the upward 

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

 2 Plaintiff’s counsel has included what he styles an “affidavit of counsel” (Doc. 24-1) verifying 

that the timesheet (Doc. 24-3) he has submitted is a “true accounting.” As it is not been 

notarized, the document is not an affidavit, nor is it in substantial compliance with 28 

U.S.C. § 1746 so that it may be considered an unsworn declaration. However, given that (1) 

Plaintiff’s counsel has represented under Federal Rule of Civil Procedure 11 that the 

timesheet is accurate and (2) the Commissioner does not dispute the hours or amount 

counsel claims, the Court will accept that document as accurate.

3 “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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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 

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

CPI, was utilized:

($125/hour) x (CPI–U[4] 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 January 30, 2015, and the Court’s 

Remand Order and Judgment were entered on February 17, 2016. The number of days 

between those two dates is 382; thus the “temporal midpoint” between those two dates

falls in August 2015. The relevant CPI–U for August 2015 was 231.26. Plugging the 

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

231.26 / 152.4. This calculation yields an hourly rate, adjusted for “cost of living” 

increases, of $189.68, 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 

$1,726.09 (i.e. $189.68 x 9.1).

 4 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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II. Conclusion

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

that the Plaintiff’s Application for Attorney Fees under EAJA (Doc. 24) is GRANTED in 

part and DENIED in part and that the Plaintiff is awarded from the Defendant 

Commissioner $1,726.09 in attorney’s fees.5

DONE and ORDERED this the 19th day of April 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 5 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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