McDonald v. Commissioner of Social Security

Filing 23

ORDER granting in part and denying in part 21 Motion for Attorney Fees; adopting in part 22 Report and Recommendations.. Signed by Judge Roy B. Dalton, Jr. on 7/14/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LEAANN MCDONALD,
Plaintiff,
v.

Case No. 6:16-cv-1150-Orl-37JRK

NANCY A. BERRYHILL, 1
Defendant.
_____________________________________
ORDER
In the instant appeal, Plaintiff sought judicial review of the Commissioner’s denial
of her claim for social security disability benefits. (Doc. 1.) On April 19, 2017, the Court
entered judgment in Plaintiff’s favor and reversed and remanded this case for further
administrative proceedings. (Doc. 20.)
As the prevailing party, Plaintiff now seeks: (1) an award for attorney fees in the
amount of $3,217.48 (“Award”) under the Equal Access to Justice Act (“EAJA”); and (2) to
direct payment of the Award to her counsel if the U.S. Department of Treasury
determines that she does not owe a debt to the government. 2 (Doc. 21 (“Fees Motion”).)
On referral, U.S. Magistrate Judge James R. Klindt issued a Report recommending that
the Court grant the fees motion in its entirety. (Doc. 22 (“R&R”).) In doing so, Magistrate

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of
Social Security. (See Doc. 22, p. 1.)
2 On June 16, 2016, Plaintiff assigned her right to any fees awarded under the EAJA
to her counsel. (See Doc. 21-1 (“Assignment”).)
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Judge Klindt concludes that: (1) Plaintiff is entitled to the full amount of the Award;
(2) the hourly rate underlying the Award is reasonable; (3) the applicable cost of living
adjustment is warranted; (4) the number of hours spent by Plaintiff’s counsel on the case
is reasonable; and (5) the parties have agreed that the government will accept the
Assignment and pay fees directly to counsel if the U.S. Department of Treasury
determines that Plaintiff does not owe a federal debt. (Id. at 2–3.)
As the Fees Motion is unopposed and neither party has objected to the R&R, the
Court has reviewed it only for clear error. Wiand v. Wells Fargo Bank, N.A.,
No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Marcort
v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). In doing so, the Court takes issue with
only one portion of the R&R—Magistrate Judge Klindt’s recommendation that the final
order contain language that the government will accept the Assignment if Plaintiff does
not owe a federal debt (“Assignment Recommendation”). (Doc. 22, p. 3.) The decision to
honor an assignment is left to the discretion of the Commissioner, Astrue v. Ratliff,
560 U.S. 586, 597 (2010), once the U.S. Department of Treasury determines that Plaintiff
does not owe a debt to the U.S. Government, 31 U.S.C. § 3727(b). As such, the Court rejects
the Assignment Recommendation. In the absence of any other clear error, the balance of
the R&R is due to be adopted.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate James R. Klindt’s Report and Recommendation dated
June 22, 2017 (Doc. 22) is ADOPTED IN PART and REJECTED IN PART.
a.

The Assignment Recommendation is REJECTED.
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b.

In all other respects, the R&R is ADOPTED, CONFIRMED, and
made a part of this Order.

2.

Plaintiff’s Uncontested Motion for Attorney’s Fees (Doc. 21) is GRANTED
IN PART AND DENIED IN PART.
a.

The Motion is GRANTED to the extent that the Court awards
Plaintiff attorney fees under the Equal Access to Justice Act in the
amount of $3,217.48.

b.
3.

In all other respects, the Motion is DENIED.

Notwithstanding

the

Court’s

rejection

of

the

Assignment

Recommendation, the Commissioner may exercise her discretion to honor
Plaintiff’s assignment of fees to counsel if the U.S Department of Treasury
determines that she does not owe a debt to the U.S. Government. See Ratliff,
560 U.S. at 597.
DONE AND ORDERED in Chambers in Orlando, Florida, on July 14, 2017.

Copies to:
Counsel of Record
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