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Bolden ex rel. L.K.B v. Colvin

United States District Court, N.D. Mississippi, Aberdeen Division

July 15, 2015


For Lutisha K. Bolden, A Minor, by Arlester Bolden, Mother, Plaintiff: Charles C. Edwards, LEAD ATTORNEY, THE LAW OFFICE OF MARC BOUTWELL, PLLC, Lexington, MS.

For Commissioner of Social Security, Defendant: John Evans Gough, Jr., LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - Oxford, Oxford, MS.

Page 398



This matter is before the court on plaintiff's motion (#27) and seeks fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Initially, plaintiff requested that $5,296.18 in EAJA fees and expenses be paid directly to her attorney. In her response (#28), the Commissioner conceded that plaintiff is entitled to an award and even proffered a sum greater than that requested: $6,052.13.[1] However, her response raised two objections: 1) EAJA awards cannot be paid directly to an attorney, and 2) an improper hourly rate was used in determining plaintiff's EAJA award. Subsequently, plaintiff adopted the Commissioner's award calculation (#29), but she challenged the Commissioner's assertion that EAJA fees cannot be paid directly to her attorney. As a result, only one issue remains: whether EAJA fees may be paid directly to a prevailing plaintiff's attorney.

This issue stems from a " Fee and Representation Agreement" (#29-2) executed at the inception of plaintiff's representation, which provides that " [a]ny EAJA fee awarded will be paid to the attorney..." The Supreme Court recently held that " a § 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a preexisting debt that the litigant owes the United States." Astrue v. Ratliff, 560 U.S. 586, 589, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010). The Supreme Court noted that although the government had a history of paying EAJA awards directly to attorneys in certain cases, it discontinued that practice in 2006,

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making direct payments to the attorneys " only in cases where 'the plaintiff does not owe a debt to the government and assigns the right to receive the fees to the attorney.'" Id. at 597. The shift in policy is attributable to the Treasury Department's modification of the Treasury Offset Program in 2005, which required offsets to be levied against EAJA awards. See 31 C.F.R. § 285.5(e)(5).

The Commissioner ascribes her argument--that EAJA fees cannot be paid directly to a litigant's attorney--to this language from the Court's holding in Ratliff : " [A] § 2412(d) fees award is payable to the litigant." However, this argument takes the Court's language out of context and ignores the issues on which Ratliff was decided. Ratliff arose out of a case in which a Social Security claimant prevailed on a claim for benefits against the United States. Ratliff v. Astrue, 540 F.3d 800, 801 (8th Cir. 2008). The district court granted the claimant's EAJA motion, but before the award was disbursed, the government reduced it to satisfy debts the claimant owed the federal government. Id. His attorney then commenced a separate action alleging that the reduction was an illegal seizure prohibited by the Fourth Amendment of the United States Constitution. Id. Notably, there is no indication that the claimant had assigned the attorney the fees at issue.

Unlike the case at bar, the attorney in Ratliff was challenging the offset on the grounds that it was an unconstitutional seizure of her property, not her client's property. She argued the statute awarded her, and not her client, attorney's fees. Her challenge was an attempt to shield the EAJA fees from the federal debts (and resulting offsets) of her client. Within this context, Ratliff's use of the phrase " payable to the litigant" has no bearing on to whom the payment may be directed. Rather, it was used to describe the party to whom the statute conferred the right to EAJA fees, i.e., the plaintiff. Thus, Ratliff cannot be construed to deny attorneys from acquiring beneficial interests in, or contractual rights to, any awards or fees directly payable to their clients.

In the present case, plaintiff's counsel does not claim a statutory right to the EAJA award, nor does he seek any sum greater than that to which his client is statutorily entitled. Plaintiff's counsel, instead, seeks to enforce a contractual assignment of the EAJA award, less any administrative offsets previously levied against his client. Since the Court's decision in Ratliff, several courts have honored fee assignments like the one involved in this case.[2] For example, in Matthews-Sheets v. Astrue, the Seventh Circuit held that the " only ground for the district court's insisting on making the award to the plaintiff is that the plaintiff has debts that may be prior to what she owes her lawyer." 653 F.3d 560, 565 (7th Cir. 2011). Notably, citing Matthew-Sheets, a district court in the Fifth Circuit recently honored an assignment because there was no " suggestion of any pre-litigation debts owed by [p]laintiff whose collection would be unfairly circumvented by paying such fees directly to his attorney." Wormsbaker v. Colvin, 2014 WL 307487, at *1 (N.D. Texas, Jan. 28, 2014).

The court finds that an EAJA award, less any administrative offsets, may be paid directly to an attorney pursuant to an express fee assignment with the attorney's client. However, the court refuses

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to adopt the more restrictive approach used in Matthew-Sheets and Wormsbaker, which only permits direct payments to attorneys where there are no debts to be offset. Like wearing a belt ...

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