JOHNSON v. ASTRUE et al

Filing 22

ORDER GRANTING 20 Motion for Attorney Fees. The Court GRANTS the Plaintiffs motion for attorneys fees in the amount of $1,866.60, but DIRECTS that the money be paid to the Plaintiff and not to her counsel. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/20/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
VELMA FRAN JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 5:12-CV-460 (MTT)

ORDER
Before the Court is the Plaintiff's motion for attorney's fees (Doc. 20) pursuant to
the Equal Access to Justice Act (EAJA) following the remand of her claim for Social
Security benefits.
The EAJA provides that a prevailing plaintiff may recover attorney's fees incurred
in a suit against the United States unless the position of the United States was
“substantially justified or ... special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). On December 20, 2013, the Court adopted the Magistrate Judge's
recommendation and reversed and remanded this action to the Commissioner for
further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 18). A
claimant who obtains a court order remanding her Social Security claim to the
Commissioner for further proceedings is a prevailing party for purposes of the EAJA.
Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993).
The Plaintiff, as the prevailing party, now requests attorney's fees in the amount
of $1,866.60 for 10 hours of work. The Commissioner does not object to the amount of

fees or the hourly rate requested, nor does she contend her position was “substantially
justified.” (Doc. 17). However, the Commissioner does object to the Plaintiff’s request
that the attorney’s fees awarded be made payable to Plaintiff’s counsel. The
Commissioner contends the fees must be paid directly to the Plaintiff, as they are
subject to an offset to satisfy any pre-existing debt she owes the government. (Doc.
21).
The Supreme Court has held that the prevailing party, not the prevailing party's
counsel, is eligible to recover attorney’s fees under the EAJA as part of the party's
litigation expenses. Astrue v. Ratliff, 560 U.S. 586, 589, 592-94 (2010) (citing 28 U.S.C.
§§ 2412(d)(1), (d)(2)(A)); see also Panola Land Buying Ass'n v. Clark, 844 F.2d 1506,
1509-11 (11th Cir. 1988) (recognizing EAJA fees are awarded to the prevailing plaintiff,
not his counsel, in accordance with the specific language of the EAJA). Following
Ratliff, the Eleventh Circuit has also affirmed that the plaintiff, not the plaintiff's attorney,
is the “prevailing party” within the meaning of the EAJA. Reeves v. Astrue, 526 F.3d
732, 736-38 (11th Cir. 2008). In Reeves, the court stated that the EAJA statute “plainly
contemplates that the prevailing party will look to the opposing party for costs incurred,
while attorneys and other service providers must look to the [prevailing] party for
compensation for their services.” Id. at 736. Ratliff acknowledges that until 2006, the
government “frequently paid EAJA fees in social security cases directly to attorneys.”
560 U.S. at 597 (internal quotation marks omitted). But since 2006, the government has
continued the direct payment practice “only in cases where the plaintiff does not owe a
debt to the government and assigns the right to receive the fees to the attorney.” Id.
(internal quotation marks omitted).

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As evidence of an assignment, the Plaintiff has presented a form in which she
purports to convey to her counsel rights to any attorney’s fees she might recover. (Doc.
20-4). However, as the Commissioner argues, the form is ineffective. EAJA awards
belong to prevailing plaintiffs. See Ratliff, 560 U.S. at 593-94. Attorney’s fees awarded
under the EAJA may be assigned, but because the awards are claims against the
United States, any assignment of them must satisfy the Anti-Assignment Act, 31 U.S.C.
§ 3727. Pursuant to that Act, assignments of claims against the United States are
permitted only after (1) a claim is allowed; (2) the amount of the claim is decided; (3) a
warrant for payment is issued; and (4) the assignment itself specifies the warrant, is
made freely, and is signed by two witnesses. 31 U.S.C. § 3727(b). See also Gibson v.
Colvin, 2013 WL 2422611, at *6 (S.D. Ga.); Thomas v. Astrue, 2012 WL 2343755, at *5
(M.D. Ga.); Brown v. Astrue, 2011 WL 3296165, at *2 (M.D. Ga.).
The “assignment” between the Plaintiff and her counsel does not satisfy the Anti–
Assignment Act. First, it was executed in November 2012. This was well before the
Court decided to allow attorney’s fees in this case under the EAJA and certainly before
the Court determined the amount. Second, the form also lacks two witness signatures
and does not mention a warrant for payment. Accordingly, the Court must award the
fees directly to the Plaintiff, not to her counsel. If the Commissioner later determines
the Plaintiff does not owe the United States a debt, she may waive the Anti-Assignment
Act's requirements and pay the EAJA fee award directly to the Plaintiff’s counsel. See,
e.g., Arthur Pew Const. Co. v. Lipscomb, 965 F.2d 1559, 1576 (1992) (holding that the
government may recognize the assignment of its obligations to another and waive the

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protection of anti-assignment statutes if it chooses). But that decision is for the
Commissioner, not the Court.
Therefore, the Court GRANTS the Plaintiff’s motion for attorney’s fees in the
amount of $1,866.60, but DIRECTS that the money be paid to the Plaintiff and not to
her counsel.
SO ORDERED, this 20th day of February, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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