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Shawn Buck v. Commissioner of Social Security

November 22, 2011

SHAWN BUCK, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Richard A. Lazzara United States District Judge

ORDER

Pending before the Court is Plaintiff's counsel's amended motion for award of attorney's fees and costs filed pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Because Defendant's counsel has previously filed a response to the initial motion for attorney's fees and costs, the Court needs no response to the amended motion.*fn1

Defendant does not contest the rate, hours, or amount of the attorney's fees and costs which Plaintiff seeks. Having carefully reviewed Plaintiff's counsel's affidavit attached to the initial motion, the Court will approve the amount of attorney's fees and costs requested, subject to Defendant determining whether Plaintiff owes a debt to the Government.

Attached to the amended motion is an assignment executed by Plaintiff on November 17, 2011, in which Plaintiff assigns any interest he may have in his counsel's attorney's fee based upon counsel's successful representation of Plaintiff in this case. The assignment, however, is a nullity inasmuch as it wholly fails to comply with the statutory requirements required of such an assignment by 31 U.S.C. § 3727(b). See Jung v. United States, 701 F.Supp. 175, 177 (E.D. Wis. 1988) (determining that plaintiffs' attempted assignment of a portion of their recovery against the government to their attorney as attorney's fees failed and was ineffective under 31 U.S.C. § 7327 "because it was not made after the claim was allowed and the amount was determined, and it was not acknowledged, witnessed or certified.") (and cases cited).

Accordingly, for the reasons expressed, Plaintiff's Amended Motion for Award of Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412 (Dkt. 22) is granted. Plaintiff is awarded attorney's fees in the sum of $2,128.00 and the cost of the clerk's filing fee in the sum of $350.00, for a total award of $2,478.00, to be paid directly to Plaintiff, subject to the right of Defendant to determine whether Plaintiff owes a debt to the Government and to offset that debt by this award of fees and costs. Defendant, however, is not obligated to honor Plaintiff's assignment attached to the amended motion, but may in its discretion waive the requirements of 31 U.S.C. § 7327.

Richard A. Lazzara

COPIES FURNISHED TO: Counsel ...


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