Placke v. Commissioner of Social Security
ORDER granting in part and denying in part 42 Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge Celeste F. Bremer on 9/15/2022. (EC1) Modified on 9/15/2022 (EC1).
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 6:21-cv-612-DAB
COMMISSIONER OF SOCIAL SECURITY,
This cause came on for consideration, without oral argument, on the
MOTION: UNOPPOSED MOTION FOR AWARD OF
ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT 28 U.S.C.
§ 2412 (Doc. No. 42)
September 14, 2022
THEREON it is ORDERED that the motion is GRANTED IN
PART AND DENIED IN PART.
On June 17, 2022, 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. No. 41. On September 14, 2022, Plaintiff
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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. 42.1
In the Motion, Plaintiff requests the Court award attorney’s fees in the
amount of $5,930.72. Id. at 1. Plaintiff represents that Plaintiff’s attorney expended
23.5 hours of work on the case in 2021 at an hourly rate of $213.00 and 4.26 hours
of work in 2022 at an hourly rate of $216.00, for a total of 27.764 hours. Id. at 1, 4;
Doc. Nos. 42-1, 42-2. Plaintiff attaches a detailed timesheet to the Motion. Doc. No.
42-1. The hourly rate requested does not exceed the EAJA cap of $125 per hour
adjusted for inflation. Doc. Nos. 42 at 3-4; 42-2. The Motion is unopposed. Doc. No.
42 at 5. The Court finds that the hourly rates and time expended are reasonable.
Plaintiff states: “If the United States Department of the Treasury determines
that Plaintiff does not owe a federal debt, the government will accept Plaintiff’s
assignment of EAJA Fees and pay fees directly to Plaintiff’s counsel.” Doc. No. 42
at 2. In Astrue v. Ratliff, 560 U.S. 586, 598 (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
Local Rule 7.01, which became effective on February 1, 2021, provides a bifurcated procedure
for a party seeking post-judgment attorney’s fees and related non-taxable expenses. On December
7, 2021, the Standing Order on Management of Social Security Cases was entered suspending
application of Local Rule 7.01 for actions covered by the Standing Order. No. 3:21-mc-00001-TJC,
Doc. No. 43 ¶ 6 (M.D. Fla. Dec. 7, 2021).
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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. Ratliff, 560 U.S.
at 596-98. An assignment, however, must comply with the requirements in 31
U.S.C. § 3727(b) (the “Anti-Assignment Act”) 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 § 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. 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. 42-3) predates this award of fees
under the EAJA, it does not satisfy § 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.
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Sec., No. 6:12-cv-613-RBD-TBS, 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
Accordingly, it is ORDERED that:
1. The Motion is GRANTED only to the extent that the Court awards EAJA
attorney’s fees to Plaintiff, as the prevailing party, in the sum of $5,930.72;
2. Otherwise, the Motion is DENIED;2 and
3. The Clerk is directed to close the case.
IT IS SO ORDERED on September ____, 2022.
CELESTE F. BREMER
UNITED STATES MAGISTRATE JUDGE
Counsel of Record
The Commissioner may waive the application of the Anti-Assignment Act to the fee award. Kerr,
874 F.3d at 934-35.
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