Long v. Berryhill

Filing 29

ORDER granting in part and denying in part 28 Motion to Amend Magistrate Judge Order. Signed by Magistrate Judge Katherine P. Nelson on 2/20/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ODELLSIA LONG,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 17-00099-N

ORDER
This matter is before the Court on Plaintiff Odellsia Long’s (“Plaintiff”) Motion
to Amend the Court’s November 28, 2017 Order (Doc. 27). (Doc. 28). Therein, Plaintiff
requests that "the Court amend the Order granting attorney fees to acknowledge the
Assignment and order the payment of fees to Plaintiff’s attorney." (Doc. 28 at 1). For
the reasons discussed herein, the motion is GRANTED IN PART and DENIED IN
PART.
Plaintiff’s motion for attorney fees (Doc. 24) referenced an assignment of fees
from Plaintiff to counsel. With regard to the assignment, Defendant Commissioner
of Social Security, stated “…[I]f it is determined upon effectuation of the Court’s
EAJA fee order that Plaintiff does not owe a debt that is subject to offset under the
Treasury Offset Program, the Commissioner agrees to accept the assignment and fees
will be made payable to Plaintiff’s attorney. If there is such a debt, any fee remaining
after offset will be made payable to Plaintiff and delivered to Plaintiff’s attorney.”
(Doc. 26 at 1-2). Neither the assignment or Defendant’s position were addressed in
the Court’s November 28, 2017 order. Accordingly, the portion of Plaintiff’s motion

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requesting that the Court acknowledge the assignment is GRANTED. The Plaintiff's
“assignment of h[er] right in the fees award to counsel does not overcome the clear
EAJA mandate that the award is to h[er] as the prevailing party, and the fees belong
to h[er].” Burton v. Berryhill, No. CV 16-00210-N, 2017 WL 4274434, at *5 (S.D. Ala.
Sept. 26, 2017)(quoting Brown v. Astrue, 271 F. App’x. 741, 743-44 (10th Cir. 2008)
(unpublished)).
However, the motion is DENIED as to Plaintiff’s request that the Court order
the payment of fees to Plaintiff’s counsel. The Supreme Court has held that an EAJA
“fees award is payable to the litigant and is therefore subject to a Government offset
to satisfy a pre-existing debt that the litigant owes the United States .” Astrue v.
Ratliff, 560 U.S. 586, 589 (2010). “ ‘In light of Ratliff, [the best] practice [is] to simply
award the EAJA fees directly to Plaintiff as the prevailing party and remain silent
regarding the direction of payment of those fees. It is not the duty of the Court to
determine whether Plaintiff owes a debt to the government that may be satisfied, in
whole or in part, from the EAJA fees award. The Court leaves it to the discretion of
the Commissioner to determine whether to honor [any] assignment of EAJA fees.’ ”
Napier v. Colvin, Civil Action No. 13–00355–N, 2014 WL 2960976, at *1 n. 1 (S.D.Ala.
July 1, 2014) (quoting Varner v. Astrue, No. 3:09–CV–1026–J–TEM, 2011 WL
2682131, at *2 (M.D.Fla. July 11, 2011)). See also Champion v. Colvin, No. CIV.A. 1400464-N, 2015 WL 4130054, at *3 (S.D. Ala. July 8, 2015).
DONE and ORDERED this the 20th day of February 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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