Carrington v. Colvin

Filing 20

ORDER granting 17 plaintiff's Motion for Attorney Fees. Signed by Magistrate Judge Tu M. Pham on 4/17/2018. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JERRY G. CARRINGTON,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

No. 15-cv-1264-TMP

ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY’S FEES

Before

the

Application

for

court

is

Attorney’s

plaintiff
Fees

Jerry

Under

Justice Act (“EAJA”), filed April 9, 2018.

the

G.

Carrington’s

Equal

Access

(ECF No. 17.)

to

Among

other attachments, plaintiff’s motion includes a fee agreement
and a power of attorney agreement demonstrating that Carrington
has assigned the right to receive any EAJA fees to counsel.
(ECF Nos. 17-3, 17-4.)

The government responded on April 17,

2017, indicating that, unless plaintiff owes a federal debt, it
does not object to the sum sought or to the payment being made
directly to plaintiff’s counsel.

(ECF No. 19.)

Under the Equal Access to Justice Act, the court shall
“award to a prevailing party . . . fees and other expenses . . .
incurred by that party in any civil action . . . , including

proceedings for judicial review of agency action, brought by or
against the United States . . . , unless the Court finds that
the position of the United States was substantially justified or
that special circumstances make an award unjust.”
2412(d)(1)(A).

As

the

court

reversed

and

28 U.S.C. §
remanded

the

Commissioner’s decision pursuant to sentence four of 42 U.S.C. §
405(g), Carrington qualifies as a prevailing party under the
EAJA.

The

circumstances

court
that

concludes
would

make

that
an

there

award

are

unjust.

no

Consequently,

Carrington is entitled to an award under the EAJA.
Carrington’s

counsel,

has

submitted

an

itemized

special

Lena Beal,
affidavit

in

support of the EAJA motion, documenting 27.6 hours of attorney
time expended on the case.

(ECF No. 17-1.)

The EAJA provides

that “attorney fees shall not be awarded in excess of $125 per
hour unless the court determines that an increase in the cost of
living or a special factor . . . justifies a higher fee.”
U.S.C. § 2412(d)(2)(A).

28

The court finds that Beal’s submitted

rate of $190.54 per hour is acceptable, based on a cost of
living comparison of the 1996 and 2015 annual CPIs for the Urban
South.

That rate computes to a total of $5,258.90 for the 27.6

hours of work performed on this case.
Because the government has indicated its intent, upon the
determination that Carrington owes no debt to the United States,
to make the fee “payable to Plaintiff’s attorney,”

-2-

(ECF No. 19

at 1 n.1), the court considers the government to have waived the
Anti-Assignment Act (“AAA”) requirements in this case.

See Kerr

for Kerr v. Comm'r of Soc. Sec., 874 F.3d 926, 934 (6th Cir.
2017) (noting that “[i]t is well established . . . that the
Government

can

waive

coverage

of

the

Anti-Assignment

Acts.”

(quoting Riviera Fin. of Texas, Inc. v. United States, 58 Fed.
Cl. 528, 530 (2003))).

Accordingly, the court finds that it is

appropriate to award payment directly to Carrington’s counsel
subject

to

offset

to

satisfy

any

pre-existing

Carrington may owe to the United States.

debt

that

See id. (“Unless the

government waives application of the AAA in EAJA cases, fee
awards must be paid to the prevailing party, not to the party's
lawyer.”).
Therefore,
GRANTED.

Carrington’s

motion

for

attorney’s

fees

is

Carrington is awarded attorney’s fees in the amount of

$5,258.90 to be paid by the Social Security Administration.

As

mentioned, the motion for an EAJA award includes a document
demonstrating that Carrington has assigned the right to receive
any EAJA fees to counsel, and the government has exercised its
discretion to waive application of the AAA by indicating its
intent

to

make

assignment.
Supreme

Court

the

fee

payable

to

counsel

pursuant

to

said

In Astrue v. Ratliff, 560 U.S. 586 (2010), the
held

that

EAJA

awards

belong

to

the

litigant

rather than to the attorney and may be offset to satisfy the

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litigant’s

pre-existing

debt

to

the

government.

If

it

is

verified that Carrington owes no pre-existing debt to the United
States,

the

Commissioner

shall

pay

the

EAJA

award

Carrington’s counsel.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
April 17, 2018
Date

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to