Steven R. Jones v. Social Security Administration Commissioner

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS; JUDGMENT on Attorney Fees in favor of Steven Ray Jones against Social Security Administration Commissioner. Signed by Honorable Jimm Larry Hendren on August 20, 2010. (tg)

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Steven R. Jones v. Social Security Administration Commissioner Doc. 19 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION STEVEN R. JONES v. Civil No. 09-5005 PLAINTIFF MICHAEL J. ASTRUE, Commissioner of Social Security ORDER Now on this 20th day of August, 2010, come DEFENDANT on for consideration Plaintiff's Request For EAJA Attorney Fees And Costs Under The Equal Access To Justice Act (document #14) and the Magistrate Judge's Report And Recommendation (document #16), and from those documents, and the responses of both parties, the Court finds and orders as follows: 1. The issue under consideration is the appropriate amount of fees to be awarded to plaintiff, who succeeded in obtaining a remand of his case to the Commissioner pursuant to sentence four of 42 U.S.C. 405(g). The Magistrate Judge reported that the appropriate fee award, pursuant to 28 U.S.C. 2412(d) of the Equal Access to Justice Act ("EAJA"), would be $3,493.50, which sum should be paid in addition to, and not out of, any past due benefits plaintiff might be awarded in the future. 2. The Commissioner does not object to the amount of the fee, but does call the Court's attention to Astrue v. Ratliff, --- Dockets.Justia.com U.S. ---, 130 S.Ct. 2521, 2010 WL 2346547 (2010), wherein the Supreme Court held that a fee award under the EAJA 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." Pursuant to this case, the Commissioner requests that the fee award be made payable to the plaintiff rather than to his attorney. 3. Plaintiff responds that he has assigned his fee award, Based on this assignment, he in advance, to his attorney. contends that the fee award should be made payable directly to his attorney. 4. statutory The decision in Ratliff was reached on the basis of analysis, but it is underpinned by the need to effectuate 31 U.S.C. 3711(a) and 3716(a), which authorize administrative offsets to collect debts owed by an individual to the government. Whatever one thinks of the decision - and the dissent makes a strong case against it - the practical effect of the case is to require payment of EAJA fee awards in a manner that does not defeat the right to administrative offsets. 5. In Taylor v. Astrue, 2010 WL 3075681 (W.D. Ark. 2010), United States Magistrate Judge Barry Bryant resolved the dilemma of making it possible for a claimant's attorney to effectuate an assignment of fees while honoring the requirements of Astrue by -2- making the fee award payable to plaintiff. He noted that the Commission did not object if the check made out to plaintiff was mailed to his attorney's office (which was said to be the customary practice). By this means, the attorney is assured of The Court collecting any fee not taken by administrative offset. finds this a reasonable resolution of the issue here presented, and will so order. IT IS THEREFORE ORDERED that the Magistrate Judge's Report And Recommendation is adopted in toto. IT IS FURTHER ORDERED that, for the reasons stated in the Magistrate Judge's Report And Recommendation, Plaintiff's Request For EAJA Attorney Fees And Costs Under The Equal Access To Justice Act (document #14) is granted, and plaintiff is awarded attorney's fees and costs pursuant to the EAJA in the sum of $3,493.50, paid in addition to, and not out of, any past due benefits plaintiff might be awarded in the future. IT IS FURTHER ORDERED that this fee award be mailed to plaintiff in care of his attorney, at his attorney's office address. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE -3-

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