Short v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS re 16 MOTION for Attorney Fees pursuant to EAJA, 17 Stipulation for Attorney Fees. It is RECOMMENDED that: (1) Plaintiff's Motion for Fees 16 be DENIED as moot in light of the parties' later filed joint st ipulation of fees; and (2) Pursuant to the parties' stipulation 17 , Plaintiff be awareded the total sum of $3,500.00 in attorney fees and costs under the Equal Access to Justice Act. Objections to R&R due by 12/19/2013. Signed by Magistrate Judge Stephanie K. Bowman on 12/2/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM SHORT,

Case No. 1:12-cv-574
Plaintiff,

Dlott, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Pursuant to local practice, this social security case has been referred to the
undersigned magistrate judge for initial review and a report and recommendation. On
July 10, 2013, the undersigned recommended that this case be reversed and
remanded, pursuant to sentence four of 42 U.S.C. §405(g).

No objections to that

Report and Recommendation were filed, and it was adopted as the opinion of the Court
on July 31, 2013. (Docs. 13, 14).
On October 29, 2013, Plaintiff filed a motion seeking a total of $3,836.25 in
attorney’s fees and costs pursuant to 42 U.S.C. §406(b). (Doc. 16). On November 19,
2013, the parties filed a joint stipulation for an award of fees under the EAJA,
representing their agreement that Plaintiff is entitled to a fee award in the amount of
$3,150.00 for all “fees, costs, and expenses under 28 U.S.C. §2412.” (Doc. 17). The
parties’ stipulation suggests that, “if” counsel can verify that Plaintiff owes no pre-

existing debt to the United States that is subject to offset, then Defendant be directed to
make the award payable to Plaintiff’s attorney pursuant to the attorney’s fee assignment
signed by Plaintiff.
The undersigned is persuaded by recent published decisions of a growing
consensus of courts within the Sixth Circuit that “[u]nder Ratliff, the proper course is to
award fees directly to Plaintiff and remain silent as to the direction of those fees.” Oliver
v. Com’r of Soc. Sec., 916 F.Supp.2d 834, 836-838 (S.D. Ohio 2013)(collecting cases
and quoting Cornell v. Com’r of Soc. Sec., 2:11-cv-97, 2012 U.S. Dist. LEXIS 6115, at
*6-7 (S.D. Ohio May 2, 2012)); see also Cox v. Astrue, 917 F. Supp.2d 659 (E.D. Ky.
2013)(holding that under Astrue v. Ratliff, 130 S. Ct. 2521 (2010), fees should be paid to
litigants regardless of whether the Commissioner shows that the plaintiff owes a federal
debt or not).
The issue of Plaintiff’s assignment is a matter of contract law not presented as a
dispute before this Court. The fee award made by this Court neither bars the United
States from honoring a valid assignment, nor prevents it from disputing it. Although the
undersigned has included language in prior R&Rs suggesting that the United States
“may” pay the fee directly to counsel once it confirms that no debt is owed, 1 even that
language exceeds the scope of the dispute before this Court and may improperly
suggest an opinion about an unconsidered issue. Compare, e.g. Cox, 917 F.Supp.2d at
662 (holding that “any assignment of an EAJA award that predates the actual award of

1

Whether Plaintiff owes a federal debt can be definitively determined only by the United States.

2

fees is void” under the Anti-Assignment Act, additional citations omitted).
It is therefore RECOMMENDED THAT:
1.

Plaintiff’s motion for fees (Doc. 16) be DENIED as moot in light of the
parties’ later filed joint stipulation of fees;

2.

Pursuant to the parties’ stipulation (Doc. 17), Plaintiff be awarded the total
sum of $3,500.00 in attorney’s fees and costs under the Equal Access to
Justice Act (“EAJA”).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM SHORT,

Case No. 1:12-cv-574
Plaintiff,

Dlott, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

4