Walling v. Commissioner of the Social Security Administration

Filing 32

ORDER: The Court hereby ORDERS that Plaintiff's unopposed motion for attorney's fees under the EAJA, 28 U.S.C. § 2412, ECF No. 29 , is GRANTED, and the Commissioner is ordered to award Plaintiff $2,456.64 for fees. Signed by Chief Judge Terry L Wooten on 1/20/2017.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Deborah D. Walling,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security,
)
)
Defendant.
)
____________________________________ )

Civil Action No.: 4:15-cv-3246-TLW

ORDER

On January 2, 2017, Counsel for the Plaintiff, Beatrice E. Whitten, filed a motion for
attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
ECF No. 29. The motion seeks reimbursement for counsel’s representation in the captioned matter
in the amount of $2,456.64 for fees because the Commissioner’s position was not substantially
justified and there are no special circumstances that make an award of fees unjust. Id. On January
9, 2017, the Commissioner filed a response stating that there were no objections to the award of
attorney’s fees, the fees should be paid directly to Plaintiff, and the fees should be offset by
Plaintiff’s federal debt, if any. ECF No. 30.
Under the EAJA, a court shall award attorney’s fees to a prevailing party in certain civil
actions against the United States unless the court finds that the government’s position was
substantially justified or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A).
To determine whether the Commissioner was “substantially justified” in terminating social
security benefits and thus whether an award of attorney’s fees under the EAJA is warranted, the
court asks whether there was arguably substantial evidence to support the Commissioner’s
position. Anderson v. Heckler, 756 F.2d 1011 (4th Cir. 1984). However, an EAJA attorney’s fees

1

award is payable to the litigant and, therefore, is subject to an offset to satisfy the litigant’s preexisting debt to the Government. Astrue v. Ratliff, 560 U.S. 586, 594 (2010).
After careful consideration of the parties’ filings and the applicable legal authority, the
Court concludes that the Commissioner’s position was not substantially justified and that the
requested fees should be awarded. As noted, the Commissioner does not object to Plaintiff’s
motion for an award of fees, and Plaintiff does not oppose the Government’s request for an offset.
Thus, the Court also concludes the Government is entitled offset in the amount of any pre-existing
federal debts. See 560 U.S. at 594.
Having reviewed the file and being fully advised, the Court hereby ORDERS that
Plaintiff’s unopposed motion for attorney’s fees under the EAJA, 28 U.S.C. § 2412, ECF No. 29,
is GRANTED, and the Commissioner is ordered to award Plaintiff $2,456.64 for fees. Although
the EAJA fee award should be paid to Plaintiff rather than to her attorney pursuant to Astrue v.
Ratliff, 560 U.S. 586, 595-96 (2010), the check itself should be mailed directly to the business
address of Plaintiff’s counsel.
IT IS SO ORDERED.
s/ Terry L. Wooten_____________
TERRY L. WOOTEN
Chief United States District Judge
January 20, 2017
Columbia, South Carolina

2