United States District Court, M.D. Florida, Orlando Division
ANGIEANNIA K. CLARKE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
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. 28)
FILED: May 3, 2018
THEREON it is
RECOMMENDED that the motion be
GRANTED in part and DENIED in part.
March 26, 2018, 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. Nos. 26, 27. On May 3, 2018,
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. 28. In the Motion, Plaintiff requests the Court award
attorney's fees in the amount of $6, 492.75. Id.
at 1. Plaintiff represents that in 2017 and 2018 her counsel,
Shea A. Fugate, Esq., expended 33 hours of work on the case
at an hourly rate of $196.75. Doc. No. 28-1 at 2-3. The hourly
rates requested do not exceed the EAJA cap of $125 per hour
adjusted for inflation. Doc. No. 28-1 at 2-3. The Court finds
that the hourly rate and time expended are reasonable.
Plaintiff states, “[I]f the United States Department of
the 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. 28
at 2. The Motion is unopposed. Id.
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 attorney's
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. 28-3,
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. See Kerr for Kerr v. Comm'r of Soc.
Sec., 874 F.3d 926, 935, 937 (6th Cir. 2017) (holding in
an appeal of a Social Security case that “attorney fees
ordered under EAJA are to be paid to the prevailing
party” and the Anti-Assignment Act “could serve
as a bar to an EAJA fee award assignment . . . .”).
it is RECOMMENDED that:
1. The Motion (Doc. No. 28) be GRANTED only
to the extent that the Court awards EAJA attorney's fees
to Plaintiff, as the prevailing party, in the sum of $6,
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. 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.