Dick v. SSA
Filing
17
MEMORANDUM OPINION & ORDER: plaintiff's motion [DE 15 ] for attorneys fees pursuant to 28 U.S.C. § 2412(d) is GRANTED, and the plaintiff is awarded EAJA fees in the amount of $2,381.25. The motion is DENIED only to the extent that the fee shall not be made payable to the plaintiff's counsel. Signed by Judge Joseph M. Hood on 10/16/2014.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
RONALD LEE DICK,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Civil Case No.
6:13-cv-258-JMH
MEMORANDUM OPINION
AND ORDER
***
This matter is currently before the Court upon the motion
of the plaintiff, Ronald Lee Dick, for attorney’s fees pursuant
to
the
§2412(d)
Equal
[DE
Access
15].
to
Justice
Act
Specifically,
(the
the
“EAJA”),
plaintiff
28
U.S.C.
seeks
an
attorney’s fee award of $2,956.25, representing 23.65 hours of
attorney time at $125.00 per hour, to be paid directly to her
counsel. While the Commissioner has no objection to an award of
attorney’s fees under the EAJA in this matter, the Commissioner
does object to the plaintiff’s request that the award be payable
directly to counsel based on Astrue v. Ratliff, 560 U.S. 586
(2010).
In Astrue, the Supreme Court held that an award of EAJA
fees belongs to the plaintiff, not the plaintiff’s attorney.
Astrue clearly states that under the plain text of the statute,
the EAJA awards “the fees to the litigant, and thus subjects
them to a federal administrative offset if the litigant has
outstanding
federal
debts.”
Astrue,
560
U.S.
at
593.
This
implies that fees under the EAJA should be paid to litigants
regardless of whether the Commissioner presently shows that the
litigant
has
adopted
a
this
federal
view.
See
debt
or
Bryant
not.
v.
The
Sixth
Circuit
Commissioner
of
has
Social
Security, 578 F.3d 443, 448 (6th Cir. 2009).
Here,
the
plaintiff
has
assigned
any
EAJA
fees
to
her
counsel [DE 15-5]. However, this assignment is not effective
under the Anti-Assignment Act, 31 U.S.C. § 3727(b). The AntiAssignment Act imposes stringent requirements on an assignment
of a claim against the United States, including a claim for an
award
of
EAJA
fees,
which
must
be
met
in
order
for
the
assignment to be enforceable. For example, “[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.” 31 U.S.C. § 3727(b). Here, the assignment predates the
Court’s actual award of fees under the EAJA and is therefore
void. See Cox v. Astrue, 917 F. Supp. 2d 659, 662 (E.D. Ky.
2013)
(citing
Kalar
v.
Astrue,
CIV.A.
10-428-JBC,
2012
WL
2873815 (E.D. Ky. July 13, 2012)) (“[D]istrict courts within the
Sixth Circuit have agreed that any assignment of an EAJA award
that predates the actual award of fees is void.”).
2
Therefore, while the Court will award attorney fees and
expenses pursuant to the EAJA in the amount of $2,956.25, the
fees
and
expenses
are
awarded
to
the
plaintiff,
not
her
attorney. In the event the plaintiff owes any pre-existing debt,
the Government is entitled to offset the award.
Accordingly,
the
Court,
being
fully
and
sufficiently
advised, hereby ORDERS that the plaintiff’s motion [DE 15] for
attorney’s fees pursuant to 28 U.S.C. § 2412(d) is GRANTED, and
the plaintiff is awarded EAJA fees in the amount of $2,381.25.
The motion is DENIED only to the extent that the fee shall not
be made payable to the plaintiff’s counsel.
This the 16th day of October, 2014.
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