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:
PLAINTIFF'S UNCONTESTED MOTION FOR ATTORNEY'S FEES
(Doc. No. 21)
October 5, 2017
it is RECOMMENDED that the motion be
GRANTED in part and DENIED in part.
August 24, 2017, 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). Doc. No. 20. On October 5, 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. 21. In the Motion, Plaintiff requests the Court award
attorney's fees in the amount of $3, 186.75. Id.
at 1. Plaintiff represents that in 2016 her counsel, Richard
A. Culbertson, Esq., expended .8 hours of work and Sarah Fay,
Esq., expended 1.4 hours of work on the case at an hourly
rate of $192.67. Id. at 2. Plaintiff also represents
that in 2017 Culbertson expended 2 hours of work and Fay
expended 12.1 hours of work on the case at an hourly rate of
$195.95. Id. The hourly rates requested do
not exceed the EAJA cap of $125 per hour adjusted for
inflation. Id. at 9-10. The Court finds that the
hourly rate and time expended are reasonable. Plaintiff
states, “If the U.S. Department of the Treasury
determines that Plaintiff does not owe a federal debt, the
government will accept Plaintiff's assignment of EAJA
fees and pay fees directly to Plaintiff's counsel.”
Id. at 2-3. The Motion is unopposed. Id. at
Astrue v. Ratliff, 560 U.S. 586, 591-98 (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 Plaintiff's assignment, Doc. No. 21-1,
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
1. The 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 $3, 186.75;
2. Otherwise, the Motion be
3. The Clerk be directed to close the case.
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. A party's failure to file written
objections waives that party's right to challenge on
appeal any unobjected-to factual finding or legal conclusion
the district judge adopts from the Report and Recommendation.
11th Cir. R. 3-1. 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.