Oliver v. Commissioner of Social Security

916 F. Supp. 2d 834, 2013 WL 65429, 2013 U.S. Dist. LEXIS 9938

Opinion

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

This case sought review, under the provisions of 42 U.S.C. § 405(g), of a final decision of the Commissioner of Social Security denying plaintiff s applications for disability insurance benefits and supplemental security income. On September 6, 2012, this Court reversed the decision of the Commissioner and remanded the action to the Commissioner for further proceedings. Opinion and Order, Doc. No. 27, 2012 WL 3879927. Final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g) was entered that same date. Judgment, Doc. No. 28. This matter is now before the Court on plaintiffs Motion for Attorney Fees Pursuant to Equal Access to Justice Act (“Plaintiff’s Motion ”), Doc. No. 29. Plaintiff specifically seeks an award of $2,637.50 for 21.10 hours of work compensated at an hourly rate of $125.00 per hour. Plaintiffs Motion, pp. 1, 5-6. The Commissioner opposes plaintiffs request for fees, “insofar as [p]laintiff requests direct payment to her counsel ‘less any pre-existeing [sic] debt subject to offset.’ ” Defendant’s Response to Plaintiffs Request for Attorney Fees (“Commissioner’s Response ”), Doc. No. 30, p. 1. Plaintiff has not filed a reply. For the reasons that follow, Plaintiffs Motion is GRANTED in part.

I. STANDARD

The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, authorizes an award of fees incurred in connection with judicial proceedings:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). In Commissioner, INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), the United States Supreme Court explained that, under the EAJA,

eligibility for a fee award in any civil action requires: (1) that the claimant be a “prevailing party”; (2) that the Government’s position was not “substantially justified”; (3) that no “special circumstances make an award unjust”; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

Id. at 158,110 S.Ct. 2316.

II. DISCUSSION

Plaintiff seeks a total award of $2,637.50. Plaintiffs Motion, p. 1. The Commissioner does not argue that plaintiff is not a prevailing party, that its litigation position was substantially justified, or that the proposed hourly rate or hours billed are unreasonable. Instead, the Commissioner opposes Plaintiffs Motion on the basis that it requests direct payment to plaintiffs counsel. Commissioner’s Response, p. 1.

Plaintiff “requests that fees be paid care of plaintiffs counsel, as assignee of the plaintiff, less any pre-existing debt subject to offset.” Plaintiffs Motion, p. 3. The United States Supreme Court has determined that any fees awarded to a prevailing party under the EAJA belong to the litigant, not to his or her attorney. Astrue v. Ratliff, — U.S. -, 130 S.Ct. 2521, 2527, 177 L.Ed.2d 91 (2010). Fees can be directly awarded to an attorney, however, where the litigant does not owe a debt to the government and assigns the right to receive fees to the attorney. Id. at 2529.

A number of courts in this circuit have considered, in light of Ratliff, whether an EAJA award should be directed to a plaintiffs attorney based on a contractual assignment between the plaintiff and his attorney. These courts have reached varying conclusions. See e.g., Darling v. Comm’r of Soc. Sec., No. 10-CV-15082, 2012 WL 4759203, at *3, 2012 U.S. Dist. LEXIS 144540, at *7 (E.D.Mich. Oct. 5, 2012) (Goldsmith, J.) (remanding to “the Commissioner for a prompt determination as to whether Plaintiff owes the Government a pre-existing debt”); Trent v. Comm’r of Soc. Sec., No. 3:09cv453, 2012 WL 4604411, at *6, 2012 U.S. Dist. LEXIS 142928, at *16 (S.D.Ohio Oct. 3, 2012) (Ovington, M.J.) (recommending that the Commissioner “be directed to verify, within twenty-one days of an Order adopting this Report and Recommendation, whether or not Plaintiff owes a pre-existing debt to the United States that is subject to off set”); Skobel v. Comm’r of Soc. Sec., No. 1:11-CV-748, 2012 WL 4050155, at *5, 2012 U.S. Dist. LEXIS 130470, at *11 (S.D.Ohio Sept. 13, 2012) (Armstrong, M.J.) (awarding EAJA fees “to be paid in care of Plaintiffs Counsel, as assignee of the Plaintiff, less any preexisting debt subject to offset”); Simpkins v. Comm’r of Soc. Sec., No. 1:11-cv-165, 2012 WL 3811795, at *3, 2012 U.S. Dist. LEXIS 125023, at *7 (S.D.Ohio Sept. 4, 2012) (Bowman, M.J.) (recommending that EAJA fees be paid to the plaintiff, but that if “the parties confirm that [plaintiff] owes no debt to the Government, the Commissioner alternatively should be permitted to pay the fee award to [p]laintiffs counsel in accordance with any existing fee contract”); Allen v. Comm’r of Soc. Sec., No. 5:11CV1095, 2012 WL 3637693, at *5, 2012 U.S. Dist. LEXIS 118599, at *12 (N.D.Ohio Aug. 22, 2012) (White, M.J.) (awarding EAJA fees to the plaintiff, but concluding that if, “after entry of this award, [defendant's counsel can verify that [plaintiff] does not owe pre-existing debt subject to offset, [defendant shall direct that the award be made payable to [plaintiffs] attorney, if there is an EAJA assignment”); Johnson v. Comm’r of Soc. Sec., No. 5:09-CV-108-R, 2012 WL 1014993, at *3, 2012 U.S. Dist. LEXIS 40047, at *9 (W.D.Ky. Mar. 22, 2012) (Russell, J.) (awarding EAJA fees to the litigant and finding that a contractual provision stating that fees be paid directly to the attorney is void); Nichols v. Comm’r of Soc. Sec., No. 1:09-cv-1091, 2012 WL 1189764, at *4, 2012 U.S. Dist. LEXIS 49447, at *9-10 (WD.Mich. Mar. 19, 2012) (Brenneman, M.J.) (recommending that EAJA fees be paid directly to the plaintiff because the plaintiffs “contractual obligations to his attorney with respect to the disposition of an EAJA fee award[] are separate obligations and not part of the present case”); Rhoads v. Comm’r of Soc. Sec., No. 1:09-CV-789, 2012 WL 191756, at *3, 2012 U.S. Dist. LEXIS 7252, at *7-9 (W-D.Mich. Jan. 6, 2012) (Carmody, M.J.) (recommending EAJA fees be paid to the plaintiff, despite the existence of an assignment, because “[a]warding payment directly to Plaintiffs counsel would, in effect, constitute a determination regarding Plaintiffs contractual obligation to his attorney despite the fact that this particular issue is not properly before the Court”); Kase v. Comm’r of Soc. Sec., No. 10-12926, 2011 WL 6371090, 2011 U.S. Dist. LEXIS 146138 (E.D.Mich. Nov. 18, 2011) (Hluchaniuk, M.J.) (recommending that EAJA fees be awarded to the plaintiff, that the Commissioner determine whether the assignment to plaintiffs counsel is valid and whether plaintiff is indebted to the government, and that if the assignment is valid and plaintiff is not indebted to the government, the attorney fee award be payable directly to plaintiffs counsel); Howell v. Comm’r of Soc. Sec., No. 10-313-WOB-CJS, 2011 WL 5509557, at *2-3, 2011 U.S. Dist. LEXIS 132042, at *6-7 (E.D.Ky. Oct. 17, 2011) (Smith, M.J.) (recommending that no Order issue regarding how EAJA fees are to be paid); Johnson v. Comm’r of Soc. Sec, No. 1:09CV2959, 2011 WL 4729933, at *3-4, 2011 U.S. Dist. LEXIS 116391, at *10-12 (N.D.Ohio Oct. 7, 2011) (Lioi, J.) (awarding EAJA fees to the litigant, finding that an EAJA assignment that predates the actual award of fees is void under the Anti-Assignment Act, 31 U.S.C. § 3727, and listing cases holding the same); Sommers v. Comm’r of Soc Sec., No. 1:09CV1183, 2011 WL 5361074, at *3-4, 2011 U.S. Dist. LEXIS 128576, at *10-11 (N.D.Ohio, Sept. 16, 2011) (Baughman, M.J.) (recommending that EAJA fees be paid jointly to plaintiff and her counsel); Delver v. Comm’r of Soc. Sec., No. 1:06cv266, 2011 WL 4914963, at *3-4, 2011 U.S. Dist. LEXIS 119591, at *9-10 (S.D.Ohio Sept. 9, 2011) (Bowman, M.J.) (recommending that EAJA fees be paid jointly to plaintiff and her counsel, despite no evidence of an assignment); Bates v. Comm’r of Soc. Sec., No. 3:09CV2349, 2011 WL 2149349, at *3, 2011 U.S. Dist. LEXIS 62144, at *7-9 (ND.Ohio Apr. 27, 2011) (Knepp, M.J.) (recommending that no Order issue regarding the direction of payment, but noting that if the Commissioner “determines Plaintiff does not owe a debt to the government, and there is a valid assignment of the fees, the Court sees no reason for the government not to honor the assignment and pay the fees directly to counsel”). The court in Bishop v. Comm’r of Soc. Sec., 3:08cv375, 2010 WL 4279185, 2010 U.S. Dist. LEXIS 112222 (S.D.Ohio Sept. 29, 2010) (Ovington, M.J.), addressed a motion for EAJA fees that involved a “Statement by Claimant Regarding EAJA Fees” in which the plaintiff had assigned his interest in any EAJA fees to his counsel. In addressing the assignment issue in light of Ratliff, Magistrate Judge Ovington wrote:

Because it is not known in the present case whether or not Plaintiff owes a debt to the United States, “in light of Ratliff, ... it [is] a better practice is to simply award the EAJA fees directly to Plaintiff as the prevailing party and remain silent regarding the direction of payment of those fees. It is not the duty of the Court to determine whether Plaintiff owes a debt to the Government that may be satisfied, in whole or in part, from the EAJA awards.” Preston v. Astrue, unpubl. op., 2010 U.S. Dist. LEXIS 98256, 2010 WL 3522156 at *2 (M.D.Fla. Sept. 8, 2010). The Government retains the discretion and authority to determine whether Plaintiff owes a debt to it. Id. If no such unpaid debt exists, or if EAJA fees remain after a governmental offset, there appears no reason on the present record for the Government not to honor Plaintiffs assignment of EAJA fees to her attorney. Cf. Ratliff, 130 S.Ct. at 2530 (“the litigant’s obligation to pay her attorney is controlled not by the EAJA but by contract and the law governing that contract.”) (Sotomayor, J., concurring). Accordingly, in light of Plaintiffs assignment and the lack of information regarding whether she owes a debt to the United States, Plaintiff should be awarded attorney fees under the EAJA as a prevailing party, and no Order should issue regarding the direction such fees must be paid.

Bishop, 2010 WL 4279185 at *4-5, 2010 U.S. Dist. LEXIS 112222 at *11-12.

This Court agrees with the recommendation in Bishop. See also Cornell v. Comm’r of Soc. Sec., 2:11-cv-97, 2012 WL 1564285, at *3, 2012 U.S. Dist. LEXIS 61165, at *6-7 (S.D.Ohio May 2, 2012) (Deavers, M.J.) (“ ‘Because the Court is unaware of whether Plaintiff owes a debt to the United States, the Court finds that under Ratliff the proper course is to award fees directly to Plaintiff and remain silent as to the direction of those fees.’ ”); Mullins v. Comm’r of Soc. Sec., No. 3:10-cv-404, 2012 WL 298155, at *5-6, 2012 U.S. Dist. LEXIS 12103, at *15 (S.D.Ohio, Feb. I, 2012) (Merz, M.J.); Steele-Malocu v. Comm’r of Soc. Sec., No. 3:09-cv-383, 2011 WL 1743457, 2011 U.S. Dist. LEXIS 48762, at (S.D. Ohio May 6, 2011) (Black, J.). This Court has not been called on to adjudicate or render a decision concerning plaintiffs contractual obligations to her attorney. It is also unclear whether plaintiff owes a debt to the government. Accordingly, this Court finds that under Ratliff, the proper course is to award fees directly to plaintiff and remain silent as to the direction of those fees. See Oiler v. Comm’r of Soc. Sec., No. 3:10-cv-348, 2012 WL 273998, at *4-6, 2012 U.S. Dist. LEXIS 11565, at *11-16 (S.D.Ohio Jan. 31, 2012).

For the forgoing reasons, Plaintiffs Motion, Doc. No. 29, is GRANTED in part. Plaintiff is AWARDED an attorney-fee under the Equal Access to Justice Act in the amount of $2,637.50 for 21.10 hours of work compensated at an hourly rate of $125.00 per hour.