CROWE v. COMMISSIONER OF SOCIAL SECURITY
Filing
31
ORDER GRANTING in part 30 Motion for Attorney's Fees, but DIRECTING the fees to be paid directly to Plaintiff. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 11/7/2019. (ech)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
D.H.C.,
Plaintiff,
v.
Comm’r of SOCIAL SECURITY,
CIVIL ACTION NO.
5:18-cv-00141-TES-CHW
Defendant.
ORDER GRANTING IN PART PLAINTIFF’S UNOPPOSED MOTION FOR
ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
Before the Court is Plaintiff’s Unopposed Motion for Attorney’s Fees [Doc. 30]
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, following the
remand of his claim for Social Security benefits. See [Doc. 28].
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 August 12, 2019, the Court remanded this action to the Commissioner
for further proceedings, and “[a] claimant who obtains a court order remanding [his]
Social Security claim to the Commissioner for further proceedings is a prevailing party
for purposes of the EAJA.” Johnson v. Colvin, No. 5:12–CV–460 (MTT), 2014 WL 657370,
at *1 (M.D. Ga. Feb. 20, 2014) (citing Shalala v. Schaefer, 509 U.S. 292, 300–01 (1993)).
Plaintiff, as the prevailing party, now requests attorney’s fees in the amount of
$7,982.52, reflecting 40 hours of work, plus $400.00 in costs, payable “directly to [his]
counsel.” [Doc. 30 at p. 1]; [Doc. 30-1 at p. 2]. The Supreme Court, however, 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. Johnson, 2014
WL 657370, at *1 (citing Astrue v. Ratliff, 560 U.S. 586, 589 (2010)); see also Panola Land
Buying Ass'n v. Clark, 844 F.2d 1506, 1509–11 (11th Cir. 1988) (recognizing that 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 Court of Appeals
has also affirmed that a plaintiff, not his attorney, is the “prevailing party” within the
meaning of the EAJA. Reeves v. Astrue, 526 F.3d 732, 736–38 (11th Cir.2008) (citing
Manning v. Astrue, 510 F.3d 1246, 1251 (10th Cir. 2007) (concluding that the EAJA makes
it clear that certain prevailing parties, not their attorneys, may recover attorney’s fees
when the Government’s action was not substantially justified); see also United States v.
Adkinson, 256 F. Supp. 2d 1297, 1318 (N.D. Fla. 2003) (“[T]he [EAJA] fee award belongs
to the client, and the attorney has no independent right to the fee award under the
EAJA.”), aff’d, 360 F.3d 1257 (11th Cir. 2004) (per curiam).
Courts in this district have already recognized the Reeves court’s statement 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
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look to the [prevailing] party for compensation for their services.” See, e.g., Johnson, 2014
WL 657370, at *1 (quoting Reeves, 526 F.3d at 736). Furthermore, Ratliff unequivocally
acknowledges that until 2006, the Government “frequently paid EAJA fees in social
security cases directly to attorneys.” 560 U.S. at 597. But since 2006, the Government has
continued the direct payment practice “only in cases where [a] plaintiff does not owe a
[federal] debt . . . and [properly] assigns the right to receive the fees to [his] attorney.”
Id.
Here, Plaintiff submitted an “Assignment of Equal Access to Justice Act ‘EAJA’
[F]ees” agreement along with his Motion. [Doc. 30-5]. In this agreement, Plaintiff
purports to “transfer and assign [his] rights and interests in any and all [EAJA fees] due
and payable to [him] . . . to [his] attorneys, Pierre Pierre Law, P.C., in consideration of
their services in representing [him] in federal court.” [Doc. 30-5 at p. 1]. However, this
agreement is ineffective. Unquestionably, EAJA awards belong to prevailing plaintiffs,
see Ratliff, 560 U.S. at 593–94, and while it is true that attorney’s fees awarded under the
EAJA may be assigned, these awards are claims against the United States, and any
assignment of them must satisfy the Anti-Assignment Act, 31 U.S.C. § 3727.
Accordingly, 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 Gooding v. Comm’r of Soc. Sec., No.
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6:18-cv-348-Orl-37LRH, 2019 WL 5005435, at *2 (M.D. Fla. Sept. 20, 2019); Gibson v.
Colvin, No. 4:03–cv–90, 2013 WL 2422611, at *6 (S.D. Ga. June 3, 2013). In addition to
these four statute-based requirements, the person making the assignment “shall [also]
acknowledge it before an official who may acknowledge a deed, and the official shall
certify the assignment.” 31 U.S.C. § 3727(b).
For the reasons stated below, the attempted “assignment” between Plaintiff and
his counsel simply does not satisfy the Anti-Assignment Act. First, it was executed on
April 19, 2018, six days before Plaintiff filed his Complaint against the Commissioner of
Social Security. Compare [Doc. 1 at p. 4] with [Doc. 30-5 at p. 1]. Therefore, “assignment”
was clearly not made “after a claim [for attorney’s fees was] allowed.” [Doc. 30-5 at p.
1]; see also 31 U.S.C. § 3727(b). In fact, it was made well before the Court awarded
attorney’s fees in this case under the EAJA and certainly before the Court determined
the amount to be awarded. Second, and most notably, Plaintiff’s “agreement” does not
mention a warrant for payment, lacks two witness signatures, and fails to include any
acknowledgment before an appropriate official as well as that official’s certification. 31
U.S.C. § 3727(b). Accordingly, the Court must award the fees directly to Plaintiff, not to
his counsel.
If the Government—in its discretion—later determines Plaintiff does not owe a
debt to the United States, it may waive the Anti-Assignment Act’s requirements and
pay the EAJA fee award directly to Plaintiff’s counsel. See, e.g., Gooding, 2019 WL
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5005435, at *2 (holding that “[t]he [G]overnment, though, may exercise its discretion to
honor the assignment if it determines that . . . Plaintiff does not owe a debt to the
government”); 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 protection of anti-assignment statutes if it chooses). Such decision, however,
is for the Commissioner, not the Court.
Despite the unopposed nature of Plaintiff’s Motion and Plaintiff’s willingness to
permit his attorney to receive the EAJA fees, there is nothing indicating (to the Court)
that the Commissioner is aware of and has waived the defects in Plaintiff’s purported
assignment. See generally [Doc. 30-1]; [Doc. 30-2]. Assuredly, the Court is fully aware
that Plaintiff’s counsel is well-practiced as a social security disability attorney; however,
an assumption that the Commissioner is aware of such obvious defects and omissions
from the requirements of the Anti-Assignment Act is simply too reaching. [Doc. 30-2 at
¶ 10]. Without more, an order issuing the award of attorney’s fees directly to Plaintiff’s
counsel would run afoul to the plain text of 31 U.S.C. § 3727 and the case law to which
the Court is bound.
Therefore, the Court GRANTS Plaintiff’s Motion for Attorney’s Fees [Doc. 30] in
the amount of $7,982.52, plus $400.00 in costs, but DIRECTS that the money be paid
directly to Plaintiff and not to his counsel. However, notwithstanding the Court’s ruling
in this Order, should the Government, after determining that Plaintiff does not owe a
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federal debt, elect to exercise its discretion and waive the Anti-Assignment Act’s
requirements, the Court will leave to the parties the determination of to whom the
EAJA fees shall be paid.
SO ORDERED, this 7th day of November, 2019.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURTS
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