Garcia v. Commissioner of Social Security
ORDER granting 31 Motion for Attorney Fees. Signed by Magistrate Judge Chris M. McAliley on 1/17/2017. (nsy)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-21711-MCALILEY
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
ORDER GRANTING CONSENT PETITION FOR ATTORNEY’S FEES
The Court previously entered final judgment in favor of Plaintiff, reversed the
decision of the Commissioner and remanded this matter for further proceedings. [DE 30].
Plaintiff has now filed an unopposed Petition for Attorney Fees pursuant to the Equal
Access to Justice Act (“EAJA”), seeking $3,149.00. [DE 31]. The Commissioner did not
file a response.
The EAJA provides that “a court shall award to a prevailing party other than the
United States fees and other expenses . . . incurred by that party in any civil action . . .
unless the court finds that the position of the United States was substantially justified or
that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). There is
no dispute that Plaintiff is the prevailing party. There is also no contention that the
Commissioner’s position was substantially justified, or that special circumstances make
an award of attorneys’ fees unjust. Accordingly, Plaintiff is entitled to recover his
attorneys’ fees under the EAJA.
As for the amount of those fees, the EAJA provides that: “The amount of fees
awarded under this subsection shall be based upon prevailing market rates for the kind
and quality of the services furnished, except that . . . (ii) attorney fees shall not be
awarded in excess of $125 per hour unless the court determines that an increase in the
cost of living or a special factor, such as the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).
Plaintiff’s attorney asks to be compensated at an hourly rate of $188.00, which
certainly is within the range of market rates for South Florida attorneys who represent
plaintiffs in similar actions. Because the market rate exceeds the $125 per hour statutory
rate set by the EAJA, the Court must decide whether to adjust the statutory hourly fee
upward to take into account the increase in the cost of living, or special factors. The
application of the cost of living adjustment is considered “next to automatic.” Meyer v.
Sullivan, 958 F.2d 1029, 1035 n. 9 (11th Cir. 1992).The Court agrees with Plaintiff that
$188.00 per hour is warranted given the increase in the cost of living that has occurred
since the EAJA was reenacted in March 1996. The Court also agrees that the 16.75 hours
that Plaintiff’s counsel devoted to this action are reasonable. [See DE 31-2]. Accordingly,
Plaintiff is awarded attorney’s fees totaling $3,149.00.
In his motion, Plaintiff asks that the attorney’s fees award be payable to Plaintiff if
he owes a federal debt but, if Plaintiff does not owe a federal debt, that the award be paid
directly to Plaintiff’s counsel. For the following reasons, this record supports this request.
Attorney’s fees awarded under the EAJA are payable to the prevailing party and
not to the party’s attorney. See Astrue v. Ratliff, 560 U.S. 586, 589 (2010). That payment,
however, is subject to a government offset to satisfy a pre-existing debt that the litigant
owes the United States. Id.
A prevailing litigant may assign his right to recover EAJA fees to his attorney,
which Plaintiff did here. [See DE 31-3]. The assignment, though, is not valid unless it
complies with the Anti-Assignment Act, 31 U.SC. § 3727(b). See Sanchez v.
Commissioner of Social Security, No. 6:11-cv-1745-Orl-22GJK, 2013 WL 1611332 at *1
(M.D. Fla. March 28, 2013) (adopted by Sanchez v. Commissioner of Social Security,
2013 WL 1611329 (M.D. Fla. April 15, 2013); see also Young v. Astrue, No. 3:09-CV132-CDL-MSH, 2011 WL 1196054 at *3 (M.D. Ga. Feb. 24, 2011) (finding that “the
Anti-Assignment Act [31 U.S.C. § 3727] applies to EAJA awards”) (citations omitted)
(adopted by Young v. Astrue, 2011 WL 1154362 (M.D. Fla. March 28, 2011).
The Anti-Assignment Act specifies the circumstances under which a claim against
the United States can be assigned. It states in pertinent part that:
A transfer or assignment of any part of a claim against the United
States … or the authorization to receive payment for any part of the
claim … 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. The assignment shall specify the warrant, must be made
freely, and must be attested to by 2 witnesses. The person making
the assignment shall acknowledge it before an official who may
acknowledge a deed, and the official shall certify the assignment.
The certificate shall state that the official completely explained the
assignment when it was acknowledged. An assignment under this
subsection is valid for any purpose.
31 U.S.C. § 3727(a), (b).
Plaintiff’s assignment does not comply with the statute because it was made before
Plaintiff’s claim for attorney’s fees was allowed and the amount decided, it is not attested
to by two witnesses and it has not been certified by an official. [DE 31-3]. Although
Plaintiff’s assignment is invalid, the Commissioner may waive the requirements of the
Anti-Assignment Act and recognize the Plaintiff’s assignment. See Delmarva Power &
Light Co. v. U.S., 542 F.3d 889, 893-94 (Fed. Cir. 2008). The Commissioner did so here,
as she did not oppose Plaintiff’s motion which clearly requested that any fee award be
paid to Plaintiff’s counsel if Plaintiff does not owe a federal debt.
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Consent
Petition for Attorney Fees [DE 31], is GRANTED, Plaintiff is hereby awarded $3,149.00
in attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, subject
to offset against any pre-existing debt that Plaintiff may owe to the United States.
IT IS FURTHER ORDERED that if there is any amount remaining after offset,
or if offset is unnecessary because the United States Department of Treasury determines
that Plaintiff has no outstanding debts to the United States, it shall be paid directly to
Plaintiff’s attorney, Luis A. Segarra, Esq.
DONE AND ORDERED in chambers in Miami, Florida this 17th day of January,
UNITED STATES MAGISTRATE JUDGE
Counsel of record
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