United States District Court, D. South Carolina
Howe Hendricks United States District Judge
matter is before the court on Plaintiff Roma Adelene
Hughes’ (“Plaintiff”) motion for
attorney’s fees (ECF No. 17) for the successful
representation of Plaintiff by Attorney W. Daniel Mayes, 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).
Motion for EAJA Fees, Plaintiff requests an award of $3,
595.69 in attorney’s fees, and $23.00 in fees and costs
because she was the prevailing party and the position taken
by Defendant was not substantially justified. (ECF No. 17).
Defendant filed a response stipulating that Plaintiff be
awarded $3, 500.00 in attorney’s fees, and stating that
the Commissioner does not object to Plaintiff’s request
for attorney’s fees but that the award of
attorney’s fees should be paid directly to Plaintiff,
and not her attorney. (ECF No. 19). Defendant further states
that the Commissioner will first determine whether Plaintiff
has any outstanding federal debt to be offset from the
attorney’s fees, and if not the Commissioner will honor
Plaintiff’s assignment of attorney’s fees to her
counsel by paying counsel directly. (Id.). If
Plaintiff does have outstanding federal debt,
Defendant represents that the Commissioner will, after
subtracting the applicable amount, make the check payable to
Plaintiff directly and deliver the check to the business
address of Plaintiff’s counsel. (Id.).
Finally, Defendant states that if Plaintiff’s
outstanding federal debt exceeds the amount of
attorney’s fees approved pursuant to this Order, the
amount of the attorney’s fees will be used to offset
Plaintiff’s federal debt and no attorney’s fees
shall be paid. (Id.).
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 (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). Based on a review of the
entire record and Defendant’s concession, the
government’s position was not substantially justified.
the court grants the motion, and directs the Commissioner to
pay directly to Plaintiff $3, 500.00 in attorney’s
fees. Such payment shall constitute a complete
release from and bar to any and all further claims that
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 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.
 Counsel has submitted an assignment,
by Plaintiff, of the fees in this case (ECF No. 17-2) and,
therefore, requests any award be made payable to her. 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. App’x 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. Here, Defendant
conditioned its acceptance of the assignment upon Plaintiff
having no outstanding federal debt.
Because Defendant has not accepted the assignment as
valid without conditions, and in keeping with the prudent
decisions of this District, the Court declines to treat such
an assignment as altering the Court’s obligation, in
payment, to Plaintiff directly. As the Court in
Ratliff emphasized, the EAJA controls what the
losing defendant must pay, “not what ...