Matthews v. Astrue

Filing 40

ORDER granting in part 35 Motion for Attorney Fees. The plaintiff is awarded the sum of $5,001.20. The court will not order the Commissioner to issue payment directly to Matthews attorney. If the Government wishes to respond to the additional award, it may file a motion for reconsideration. Signed by Magistrate Judge Leslie A Bowman on 2/11/13.(SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of )
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Social Security,
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Defendant.
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Jennifer L. Matthews,

No. CIV 11-290-TUC-LAB
ORDER

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Pending before the court is the plaintiff’s motion for attorney’s fees pursuant to the Equal
Access to Justice Act (EAJA), filed on December 18, 2012. (Doc. 35)

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The plaintiff filed this action for review of the final decision of the Commissioner for

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Social Security pursuant to 42 U.S.C. § 405(g). In an order issued on July 12, 2012, this court

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reversed the Commissioner’s final decision and remanded the case for payment of benefits. The

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plaintiff moves for attorney’s fees in the amount of $4,632.56 pursuant to the Equal Access to

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Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. 35, p. 3)

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The government filed a response agreeing to pay fees in the amount $4,632.56. (Doc.

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37) The government, however, argues the payment should go to the plaintiff, not the plaintiff’s

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counsel, citing Astrue v. Ratliff. Id. The government is correct. See Astrue v. Ratliff, 130 S.Ct.

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2521, 2524 (2010) (“We hold that a § 2412(d) fees award is payable to the litigant and is

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therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the

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United States.”).

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The plaintiff assigned her claim to her attorney, but that assignment runs afoul of the

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Assignment of Claims Act, 31 U.S.C. § 3727(b), which forbids the assignment of claims against

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the U.S. government until after those claims are actually allowed. Accordingly, this court will

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not order the government to issue payment directly to the plaintiff’s counsel.

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In her reply brief, the plaintiff asks for an additional award of $368.64 for the 2.0 hours

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of work that was spent preparing her reply brief. (Doc. 39) The court will allow this additional

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award because the time spent litigating the EAJA issue is compensable. Smith v. Astrue, 2012

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WL 3114595 (N.D.Cal. 2012).

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IT IS ORDERED that the plaintiff’s motion for attorney’s fees pursuant to the Equal

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Access to Justice Act (EAJA), filed on December 18, 2012, is GRANTED in PART. (Doc. 35)

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The plaintiff is awarded the sum of $5,001.20.

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The court will not order the Commissioner to issue payment directly to Matthew’s
attorney. See Smith v. Astrue, 2012 WL 3114595 (N.D.Cal. 2012).

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The court observes that the government could, after subtracting any offset, waive the

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requirements of the Assignment of Claims Act and make payment directly to the plaintiff’s

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counsel. See Lobato v. Astrue, 2012 WL 3155699 (N.D.Cal. 2012).

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The government did not have a formal opportunity to respond to the plaintiff’s request

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for an additional award of $368.64 for the 2.0 hours of work that was spent preparing the reply

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brief.

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reconsideration in accordance with LRCiv 7.2(g).

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If the government wishes to be heard on this issue, it may file a motion for

DATED this 11th day of February, 2013.

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