Rogers v. Commissioner of Social Security Administration

Filing 38

ORDER granting 36 Motion for Attorney Fees Pursuant to EAJA, awarding $2,649.08 in attorneys fees, $18.33 in expenses, and $400.00 in costs. Signed by Honorable Bruce Howe Hendricks on 12/10/2014.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Amy M. Rogers, a/k/a Amy M. King,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,
Defendant.

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Civil Action No.1:13-2327-BHH

ORDER

This matter is before the court on the plaintiff’s motion for attorney’s fees (ECF
No. 36) for the successful representation of the plaintiff Amy M. Rogers (“the plaintiff”)
by Attorney Hal W. Roach in the underlying Social Security benefits action. The Court
may make such an award pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. §2412(d).
In her Motion for EAJA Fees, the plaintiff requests an award of $2,649.08 in
attorney’s fees, $18.33 in expenses and $400.00 in costs because she was the
“prevailing party” and she claims that the position taken by the defendant was not
“substantially justified.” (ECF No. 36.) The defendant filed a response stating that the
Commissioner does not object to the plaintiff’s request for attorney’s fees and costs, but
that the award of attorney’s fees should be paid directly to the plaintiff, and not her
attorney. (ECF No. 37.)
The EAJA provides attorney’s fees in actions where the government’s position is
not substantially justified. The substantial justification test is one of reasonableness in
law and fact. See Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101

L.Ed2d 490 (1988).

The district court has broad discretion to set the attorney fee

amount. “[A] district court will always retain substantial discretion in fixing the amount of
an EAJA award. Exorbitant, unfounded, or procedurally defective fee applications . . .
are matters that the district court can recognize.” Hyatt v. North Carolina Dep’t of
Human Res, 315 F.3d 239, 254 (4th Cir. 2002) (citing Comm’r v. Jean, 496 U.S. 154,
163 (1990)). Moreover, the court should not only consider the “position taken by the
United States in the civil action,” but also the “action or failure to act by the agency upon
which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D), as amended by P.L. 99-80,
§ 2(c)(2)(B).
Accordingly, the court grants the motion, and directs the Commissioner to pay
directly to the plaintiff $2,649.08 in attorney’s fees, $18.33 in expenses and $400.00 in
costs.1 Such payment shall constitute a complete release from and bar to any and all
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Counsel has submitted an assignment, by the plaintiff, of the fees in this case (ECF No.
29-1) and, therefore, requests any award be made payable to him. In Astrue v. Ratliff, 560 U.S.
586, 598(2010), the United States Supreme Court held that the EAJA requires attorneys’ fees to
be awarded directly to the litigant. Id. (holding that the plain text of the EAJA requires that attorneys’
fees be awarded to the litigant, thus subjecting EAJA fees to offset of any pre-existing federal
debts); see also Stephens v. Astrue, 565 F.3d 131, 139 (4th Cir. 2009) (same). Neither Ratliff nor
Stephens addresses whether claimants may assign EAJA fees to their attorneys via contract. This
district, however, has fairly consistently found such assignments ineffective to require the Court to
make payment directly to counsel. See Williams v. Astrue, No. 2012 WL 6615130, at *4 (D.S.C.
Dec. 19, 2012); Phillips v. Astrue, 2011 WL 5041751, at *1 (D.S.C. Oct.21, 2011);Tate v. Astrue,
2010 WL 4860356, at *2 (D.S.C. Nov.23, 2010); Washington v. Astrue, 2010 WL 3023028, at *5
(D.S.C. July 29, 2010) (holding that EAJA fees are payable to plaintiff even where plaintiff has
attached an affidavit assigning his rights in the fees award to counsel). At least one circuit court
of appeals has additionally expressed concern that such contracts would constitute an “endrun”
around the plain text of the EAJA, as interpreted in Ratliff. See Brown v. Astrue, 271 Fed. Appx.
741, 743 (10th Cir. 2008) (stating, in dicta, that claimant’s “assignment of his right in the fees award
to counsel does not overcome the clear EAJA mandate that the award is to him as the prevailing
party . . . .”). The undersigned has on some previous occasion ordered payment to counsel but only
where the United States has accepted the assignment as valid; the government’s practice in this
regard has not been uniform.
But, in keeping with the prudent decisions of this district, the Court would decline to treat
such an assignment as altering the Court’s obligation, in payment, to the plaintiff directly. As the
Court in Ratliff emphasized, EAJA controls what the losing defendant must pay, “not what the
prevailing plaintiff must pay his lawyer.” Ratliff, 560 U.S. at 598.

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further claims that the plaintiff may have under the EAJA to fees, costs, and expenses
incurred in connection with disputing the Commissioner’s decision.

This award is

without prejudice to the rights of the plaintiff’s counsel to seek attorney fees under
section 206(b) of the Social Security Act, 42 U.S.C. § 406(b), subject to the offset
provisions of the EAJA.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
December 10, 2014
Greenville, South Carolina.

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