United States District Court, D. South Carolina
Jennie F. Bowens, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant.
HOWE HENDRICKS, District Judge.
matter is before the court on Plaintiff's motion for
attorney's fees (ECF No. 31) for the successful
representation of Plaintiff Jennie F. Bowens
("Plaintiff") by Attorney Beatrice E. Whitten, 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,
225.52 in attorney's fees because she was the prevailing
party and the position taken by Defendant was not
substantially justified. (ECF No. 31). Defendant filed a
response 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. 32). 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, 225.52 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
 Counsel has submitted an assignment, by
Plaintiff, of the fees in this case (ECF No. 31-5) 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 the ...