United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J.KELLY UNITED STATES MAGISTRATE JUDGE.
This
cause came on for consideration without oral argument on the
following motion:
MOTION:PLAINTIFF'S UNOPPOSED MOTION FOR
ATTORNEY'S
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
(Doc. No. 24)
FILED:June 27, 2018
THEREON it is RECOMMENDED
that the motion be GRANTED IN PART and
DENIED IN PART.
On
March 30, 2018, judgment was entered reversing the final
decision of the Commissioner of Social Security (the
“Commissioner”) and remanding the case for
further proceedings. Doc. No. 23. On June 27, 2018, Plaintiff
filed a motion for attorneys' fees pursuant to the Equal
Access to Justice Act (the “EAJA”), 28 U.S.C.
§ 2412(d) (the “Motion”). Doc. No. 24. In
the Motion, Plaintiff requests that the Court award
attorneys' fees in the amount of $8, 899.65 and costs in
the amount of $400.00. Id. at 1. The Commissioner
does not oppose the Motion. Id. at 2.
In the
Motion and attachments, counsel for Plaintiff, Stacey B.
DeVeaux, states that her law firm performed the following
work:
Attorney
|
Time (in Hours)
|
Hourly Rate
|
Total
|
Stacey B. DeVeaux
|
6.9
|
$197.77
|
$1, 364.61
|
Charles E. Binder
|
1.9
|
$197.77
|
$375.76
|
Eddy Pierre Pierre
|
36.2
|
$197.77
|
$7, 159.28
|
TOTAL
|
|
|
$8, 899.65
|
Doc. No. 24 at 1; Doc. No. 24-5 at 1. Ms. DeVeaux provides
support showing that the hourly rate charged does not exceed
the statutory caps adjusted for inflation. Doc. No. 24-4 at
3. After reviewing the hours worked and the hourly rate
charged, the fees requested are reasonable.
Plaintiff
requests that the EAJA attorneys' fee be paid directly to
counsel pursuant to an assignment of EAJA fee (Doc. No. 24-6
at 1) so long as it is determined that Plaintiff does not owe
a debt to the United States Government. Doc. No. 24 at 3. In
Astrue v. Ratliff, 130 S.Ct. 2521, 2524-30 (2010),
the Supreme Court held that EAJA fees are awarded to the
“prevailing party” or the litigant rather than to
the litigant's attorney. However, the Supreme Court noted
that nothing in the statute or its holding affects the
prevailing party's contractual right to assign his or her
right to receive the fee to an attorney. Id. at
2528-29. An assignment, however, must comply with the
requirements in 31 U.S.C. § 3727(b) in order to be
valid. See Farm Bureau Mut. Ins. Co. v. U.S., 5 Cl.
Ct. 142, 145 (Cl. Ct. 1984).
Specifically,
Section 3727(b) provides that:
An 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. The assignment shall
specify the warrant, must be made freely, and must be
attested to by [two] witnesses. The person making the
assignment shall acknowledge it before an official who may
acknowledge a deed, and the official shall certify the
assignment. The certificate shall state that the official
completely explained the assignment when it was acknowledged.
An assignment under this subsection is valid for any purpose.
31 U.S.C. ยง 3727(b) (emphasis added). Thus, an
assignment made prior to the award of attorneys' fees
necessarily violates the Anti-Assignment Act because the
claim has not been allowed, the amount of the claim has not
been ...