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Birge v. Colvin

United States District Court, Fifth Circuit

December 16, 2013

ANTHONY JAMES BIRGE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, Magistrate Judge.

Pursuant to Special Order No. 3-251, this case was automatically referred for findings of fact and recommendation. Before the Court is Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, filed October 30, 2013 (doc. 16). Based on the relevant filings, evidence, and applicable law, the motion should be GRANTED in part.

I. BACKGROUND

On June 8, 2012, through counsel, James Anthony Birge (Plaintiff) filed a complaint seeking reversal and remand of the Commissioner's decision denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (doc. 1.) On September 30, 2013, the Court entered judgment, reversing and remanding the case for further proceedings. (doc. 15.) Plaintiff then moved for an award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (doc. 16.) The Commissioner objected only to the request that the fees be paid directly to counsel rather than Plaintiff. (doc. 18.)

II. EAJA

Pursuant to the EAJA, the Court must award attorney's fees and expenses if (1) the claimant is the "prevailing party";[1] (2) the Government's position was not "substantially justified"; and (3) there are no special circumstances that make an award unjust. Murkeldove v. Astrue, 635 F.3d 784, 790 (5th Cir. 2011) (citing 28 U.S.C. § 2412(d)(1)(A)). The attorney's fees awarded under the EAJA must be reasonable, however. See 28 U.S.C. § 2412(b). The claimant has the burden of demonstrating that the hours requested were reasonably expended on the prevailing claim. Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990); Sandoval v. Apfel, 86 F.Supp.2d 601, 601 (N.D. Tex. 2000) (Fitzwater, C.J.) (citations omitted).

Here, as the prevailing party, Plaintiff has requested $4, 474.83 in attorney's fees based on 25.10 hours of attorney work at an hourly rate of $178.28. (doc. 16-2 at 2-3.) He also requests reimbursement of the $350 filing fee from the Judgment Fund, and an extension of 30 days from his receipt of the Notice of Award to file a motion for attorney's fees under § 406(b) of the Social Security Act, should he be successful at the administrative level. ( Id. at 3-4; doc. 16-5 at 3-4.). ( Id. ) The Commissioner does not object to the number of hours, the requested hourly rate, or the request for reimbursement of the $350 filing fee. She also does not object to the request for an extension of time.

III. RECEIPT OF PAYMENT

The Commissioner objects solely to the request that the fee award be made payable directly to counsel.

The Supreme Court has held that a fee award under the EAJA must be paid directly to a claimant who is found to be the "prevailing party" in the case, rather than to his attorney. Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 2528-29 (2010). Adhering to Ratliff' s express holding, courts in the Fifth Circuit have declined to allow for payment to be made directly to counsel, even in cases where the fee award is not subject to any offset by the government. See, e.g., Goin, 2013 WL 1797862, at *6 ("conclud[ing] that the [most] prudent course [was] to follow the express holding of Ratliff and require that EAJA fees be made payable to [the] Plaintiff and not his counsel"; acknowledging "the potential need to amend a final judgment should the government later learn within the relevant time frame that it is entitled to offset EAJA fees to pay a debt [owed] to the government"); Skinner, No. 3:12-CV-02349-BK, at *2 (holding that pursuant to Ratliff, "EAJA awards are payable directly to the prevailing party, not his attorney"); Yearout v. Astrue, No. 3:10-CV-0430-L-BH, 2011 WL 2988421, at *3 n. 2 (N.D. Tex. Mar. 15, 2011), rec. adopted, 2011 WL 2990368 (N.D. Tex. July 22, 2011) (same); see also Jackson v. Astrue, 705 F.3d 527, 531 and n. 11 (5th Cir. 2013) (noting that in contrast to fees awarded under § 406(b) of the Social Security Act, "EAJA fees are paid to the claimant, who may or may not tender the award to counsel"; and that "[b]ecause the government pays EAJA fees directly to the litigant, the fees are also subject to an offset to satisfy any pre-existing debt that the litigant [may] owe[] to the federal government) (citing Ratliff, 130 S.Ct. at 2524). Accordingly, the award of attorney's fees in this case should be made payable directly to Plaintiff and mailed to Plaintiff's counsel.

IV. RECOMMENDATION

Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act , filed October 30, 2013 (doc. 16), should be GRANTED, in part. Plaintiff should be awarded a total of $4, 474.83 in attorney's fees, based on 25.10 hours of attorney work at an hourly rate of $178.28, and he should be paid $350 for reimbursable costs from the Judgment Fund. The award of attorney's fees in this case should be made payable directly to Plaintiff and mailed to Plaintiff's counsel. His request for an extension of 30 days from his receipt of the Notice of Award to file ...


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