Good v. SSA

Filing 18

MEMORANDUM OPINION & ORDER: 1) Plaintiff's Motion for Attorney's Fees [DE 16] is GRANTED IN PART and DENIED IN PART; 2) Plaintiff is awarded fees under the Equal Access to Justice Act in the amount of three thousand eight hundred and fifty dollars ($3,850.00). Signed by Judge Joseph M. Hood on 2/8/2018. (RC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
MELVEL A. GOOD,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.

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Civil No. 6:16-cv-234-JMH
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) MEMORANDUM OPINION & ORDER
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This matter is before the Court upon the Plaintiff’s Motion
for Attorney’s Fees Pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412 (the “EAJA”). [DE 16].

The Court has reviewed

the motion and response and is sufficiently advised.

In the

motion, Plaintiff requests an award of attorney’s fees in the
amount of $3,850.00, to be paid to Plaintiff’s attorney, calculated
at the rate of $125.00 per hour for a total of 30.80 hours.

Said

motion is supported by the sworn affidavit of Plaintiff’s attorney,
Hon. Elizabeth K. Broyles.
In granting the Defendant’s Motion to Remand [DE 13], this
Court

remanded

the

matter

Commissioner [DE 14].
stating

that

apparently

he

does

conceding

for

further

consideration

by

the

The Commissioner has responded [DE 17],
not
that

oppose
the

the

request

government’s

for

EAJA

position

fees,

was

not

substantially justified and no special circumstances prevent an

award

to

Plaintiff,

as

the

prevailing

party.

28

U.S.C.

§

2412(d)(1).
The Commissioner does, however, oppose payment of the fees
directly

to

counsel,

rather

than

the

prevailing

Plaintiff,

pursuant to the teachings of Astrue v. Ratliff, 130 S.Ct. 2521,
2528-29 (2010).

Plaintiff did not reply to this objection.

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 a federal
debt or not. The Sixth Circuit has adopted this view. See Bryant
v. Commissioner of Social Security, 578 F.3d 443, 448 (6th Cir.
2009).
Here, Plaintiff has assigned any EAJA fees to his counsel [DE
16-7]. However, this assignment is not effective under the AntiAssignment Act, 31 U.S.C. § 3727(b). The Anti-Assignment 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. 10-428JBC, 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.”).
Therefore, while the Court will award attorney fees and
expenses pursuant to the EAJA in the amount of $3,850.00, the fees
and expenses are awarded to the plaintiff, not his attorney. In
the event Plaintiff owes any pre-existing debt, the Government is
entitled to offset the award.
Accordingly, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Attorney’s Fees [DE 16] is

GRANTED IN PART and DENIED IN PART; and
(2)

that Plaintiff is awarded fees under the Equal Access to

Justice Act in the amount of three thousand eight hundred and fifty
dollars ($3,850.00).
This the 8th day of February, 2018.