United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration, without oral argument, on
the following motion:
MOTION:UNOPPOSED MOTION FOR AWARD OF ATTORNEY FEES PURSUANT
TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)
(Doc. No. 22)
FILED: March 8, 2017
THEREON it is RECOMMENDED that the motion is GRANTED in part
and DENIED in part.
December 15, 2016, a judgment was entered reversing and
remanding this case to the Commissioner of Social Security
for further proceedings pursuant to sentence four of 42
U.S.C. § 405(g), after Defendant filed an Unopposed
Motion for Entry of Judgment with Remand. Doc. No. 21. On
March 8, 2017, Plaintiff moved, pursuant to the Equal Access
to Justice Act, 28 U.S.C. § 2412(d) (the
“EAJA”), for an award of attorney's fees (the
“Motion”). Doc. No. 22. In the Motion, Plaintiff
requests the Court award attorney's fees in the amount of
$1, 560.22. Id. at 1. Counsel represents that she
expended 8.1 hours of work on the case in 2016, at an hourly
rate of $192.62. Id. The hourly rates requested do
not exceed the EAJA cap of $125 per hour adjusted for
inflation. Doc. No. 22-1 at 2-3. The Court finds that the
hourly rate and time expended are reasonable. Plaintiff
states that “if the United States Department of
Treasury determines that Plaintiff does not owe a debt that
[is] subject to offset, the Plaintiff requests that the
government accept the assignment of EAJA Fees and pay such
fees directly to Plaintiff's attorney.” Doc. No. 22
at 2. The Motion is unopposed. Id. at 2.
Astrue v. Ratliff, 560 U.S. 586, 2524-30 (2010), the
United States Supreme Court held that EAJA fees are awarded
to the “prevailing party” or the litigant rather
than to the litigant's attorney. The Supreme Court noted,
however, that nothing in the statute or its holding affects
the prevailing party's contractual right to assign the
right to receive the fee to an attorney, analogizing those
cases interpreting and applying 42 U.S.C. § 1988 where
the Court has held a prevailing party has the right to waive,
settle, negotiate, or assign entitlement to attorneys'
fees. Id. at 596-98. An assignment, however, must
comply with the requirements in 31 U.S.C. § 3727(b) to
be valid. See Farm Bureau Mut. Ins. Co. v. United
States, 5 Cl. Ct. 142, 145 (Cl. Ct. 1984).
3727(b) provides that “[a]n assignment may be made only
after a claim is allowed, the amount of the claim is decided,
and a warrant for payment of the claim has been
issued.” Accordingly, an assignment made prior to the
award of attorney's fees necessarily violates section
3727(b) because the claim has not been allowed, the amount of
the claim has not been determined, and a warrant for the
claim has not been issued. Id. Thus, any assignment
of EAJA fees which predates an award and determination of the
amount of fees is voidable. See Delmarva Power &
Light Co. v. United States, 542 F.3d 889, 893 (Fed. Cir.
2008); Young v. Astrue, No. 3:09-CV-132 CDL-MSH,
2011 WL 1196054, at *3-4 (M.D. Ga. Feb. 24, 2011). In this
case, because Plaintiffs assignment, Doc. No. 24-3, predates
this award of fees under the EAJA, it does not satisfy
section 3727(b). Crumbly v. Colvin, No. 5:13-CV-291
(MTT), 2014 WL 6388569, at *4-5 (M.D. Ga. Nov. 14, 2014);
Huntly v. Comm'r of Soc. Sec, No.
6:12-cv-613-Orl-37TBS, 2013 WL 5970717, at *5 (M.D. Fla. Nov.
3, 2013). Based on the foregoing, the Court concludes the
award of EAJA fees should be made payable to Plaintiff as the
prevailing party. Accordingly, it is RECOMMENDED that:
Motion be GRANTED only to the extent that the Court awards
EAJA attorney's fees to Plaintiff, as the prevailing
party, in the sum of $1, 560.22;
Otherwise, the Motion be DENIED; and
Clerk be directed to close the case.
to file written objections to the proposed findings and
recommendations contained in this report within fourteen days
from the date of its filing shall bar an aggrieved party from
attacking the factual findings on appeal. In order to
expedite the final disposition of this matter, if the parties
have no objections to this report and recommendation, they
may promptly file a joint notice of no objection.