Clarke v. Commissioner of Social Security

Filing 29

REPORT AND RECOMMENDATIONS re 28 UNOPPOSED MOTION FOR AWARD OF ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d). It is RECOMMENDED that: 1. The Motion (Doc. No. 28) be GRANTED only to the extent that the Court awards EAJA attorney's fees to Plaintiff, as the prevailing party, in the sum of $6,492.75; 2. Otherwise, the Motion be DENIED; and 3. The Clerk be directed to close the case. A party has fourteen days from this date to file writte n objections to the Report and Recommendation's factual findings and legal conclusions. Failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district j udge adopts from the Report and Recommendation. 11th Cir. R. 3-1. To expedite the final disposition of this matter, if the parties have no objections to this Report and Recommendation, they may promptly file a joint notice of no objection. Signed by Magistrate Judge Gregory J. Kelly on 5/10/2018. (MB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANGIEANNIA K. CLARKE,
Plaintiff,
-vs-

Case No. 6:17-cv-616-Orl-40GJK

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________

REPORT AND RECOMMENDATION
This cause came on for consideration, without oral argument, on the following motion:
MOTION:

UNOPPOSED MOTION FOR AWARD OF ATTORNEY
FEES PURSUANT TO THE EQUAL ACCESS TO
JUSTICE ACT, 28 U.S.C. § 2412(d) (Doc. No. 28)

FILED:
May 3, 2018
_______________________________________________________
THEREON it is RECOMMENDED that the motion be GRANTED in
part and DENIED in part.
On March 26, 2018, a judgment was entered reversing and remanding this case to the
Commissioner of Social Security for further proceedings pursuant to sentence four of 42 U.S.C.
§ 405(g). Doc. Nos. 26, 27. On May 3, 2018, Plaintiff moved, pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412(d) (the “EAJA”), for an award of attorney’s fees (the “Motion”).
Doc. No. 28. In the Motion, Plaintiff requests the Court award attorney’s fees in the amount of
$6,492.75. Id. at 1. Plaintiff represents that in 2017 and 2018 her counsel, Shea A. Fugate, Esq.,
expended 33 hours of work on the case at an hourly rate of $196.75. 1 Doc. No. 28-1 at 2-3. The

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Plaintiff attaches a detailed time sheet in support of the number of hours worked. Doc. No. 28-2 at 3-4.

hourly rates requested do not exceed the EAJA cap of $125 per hour adjusted for inflation. Doc.
No. 28-1 at 2-3. The Court finds that the hourly rate and time expended are reasonable. Plaintiff
states, “[I]f the United States Department of the Treasury determines that Plaintiff does not owe
a debt that [is] subject to offset, the Plaintiff requests that the government accept the assignment
of EAJA fees and pay such fees directly to Plaintiff’s attorney.” Doc. No. 28 at 2. The Motion is
unopposed. Id.
In Astrue v. Ratliff, 560 U.S. 586, 591-98 (2010), the United States Supreme Court held
that EAJA fees are awarded to the “prevailing party” or the litigant rather than to the litigant’s
attorney. The Supreme Court noted, however, that nothing in the statute or its holding affects the
prevailing party’s contractual right to assign the right to receive the fee to an attorney,
analogizing those cases interpreting and applying 42 U.S.C. § 1988 where the Court has held a
prevailing party has the right to waive, settle, negotiate, or assign entitlement to attorney’s fees.
Id. at 596-98. An assignment, however, must comply with the requirements in 31 U.S.C. §
3727(b) to be valid. See Farm Bureau Mut. Ins. Co. v. United States, 5 Cl. Ct. 142, 145 (Cl. Ct.
1984).
Section 3727(b) provides that “[a]n 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.” Accordingly, an assignment made prior to the award of attorney’s fees necessarily
violates section 3727(b) because the claim has not been allowed, the amount of the claim has not
been determined, and a warrant for the claim has not been issued. Id. Thus, any assignment of
EAJA fees which predates an award and determination of the amount of fees is voidable. See
Delmarva Power & Light Co. v. United States, 542 F.3d 889, 893 (Fed. Cir. 2008); Young v.

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Astrue, No. 3:09–CV–132 CDL–MSH, 2011 WL 1196054, at *3-4 (M.D. Ga. Feb. 24, 2011). In
this case, because Plaintiff’s assignment, Doc. No. 28-3, predates this award of fees under the
EAJA, it does not satisfy section 3727(b). Crumbly v. Colvin, No. 5:13–CV–291 (MTT), 2014
WL 6388569, at *4-5 (M.D. Ga. Nov. 14, 2014); Huntly v. Comm’r of Soc. Sec., No. 6:12-cv613-Orl-37TBS, 2013 WL 5970717, at *5 (M.D. Fla. Nov. 3, 2013). Based on the foregoing, the
Court concludes the award of EAJA fees should be made payable to Plaintiff as the prevailing
party. See Kerr for Kerr v. Comm’r of Soc. Sec., 874 F.3d 926, 935, 937 (6th Cir. 2017) (holding
in an appeal of a Social Security case that “attorney fees ordered under EAJA are to be paid to
the prevailing party” and the Anti-Assignment Act “could serve as a bar to an EAJA fee award
assignment . . . .”).
Accordingly, it is RECOMMENDED that:
1. The Motion (Doc. No. 28) be GRANTED only to the extent that the Court awards
EAJA attorney’s fees to Plaintiff, as the prevailing party, in the sum of $6,492.75;
2. Otherwise, the Motion be DENIED; 2 and
3. The Clerk be directed to close the case.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. Failure to file written objections
waives that party’s right to challenge on appeal any unobjected-to factual finding or legal
conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1. To

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The Commissioner may elect to waive the application of the Anti-Assignment Act to the fee award. Kerr, 874 F.3d
at 934-35.

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expedite the final disposition of this matter, if the parties have no objections to this Report
and Recommendation, they may promptly file a joint notice of no objection.
RECOMMENDED in Orlando, Florida, on May 10, 2018.

Copies to:
Counsel of Record

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