Clark v. Colvin

Western District of Texas, txwd-6:2016-cv-00293

ORDER GRANTING IN PART AND DENYING IN PART {{13}} Motion for Attorney Fees. Therefore, Plaintiffs Motion (ECF No. 13) is GRANTED IN PART AND DENIED IN PART. After fixing Plaintiffs initial miscalculation, Plaintiffs motion for attorneys fees is GRANTED, and Plaintiff is awarded $4,600.09 in attorneys fees to be distributed as follows: (1) 20.8 hours of attorney work for litigating Plaintiffs appeal at an hourly rate of $191.86 ($3,990.69); (2) 6.1 hours in paralegal fees at an hourly rate of $100.00 ($610.00). Insofar as Plaintiff requests an assignment of the EAJA award to Plaintiffs attorney rather than Plaintiff is DENIED. The award of attorneys fees in this case should be made payable directly to Plaintiff and mailed to Plaintiffs counsel in the amount of $4,600.09. Signed by Judge Jeffrey C. Manske.

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Case 6:16-cv-00293-RP Document 17 Filed 06/15/17 Page 1 of 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION JEFFREY DARRELL CLARK, § Plaintiff, § § v. § § Case No. W-16-CA-00293-RP NANCY A. BERRYHILL, § Defendant. § § ORDER Before the Court is Plaintiff’s Opposed Motion for Attorney’s Fees. ECF No. 13. As explained below, the undersigned will award Plaintiff $4,600.69 in attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Additionally, the undersigned denies Plaintiff’s attorney’s request to have the EAJA award be paid directly to Plaintiff’s attorney rather than to Plaintiff. I. BACKGROUND On December 12, 2016, Judge Robert Pitman granted the Commissioner’s Unopposed Motion to Remand this case to the Social Security Agency for an additional hearing. ECF No. 11. In light of this favorable judgment, Plaintiff’s counsel seeks an award of attorney’s fees pursuant to the EAJA. ECF No. 13. Plaintiff’s counsel also requests that the assignment of the EAJA award be made to Plaintiff’s attorney rather than Plaintiff. Id. 1 Case 6:16-cv-00293-RP Document 17 Filed 06/15/17 Page 2 of 4 II. ANALYSIS Under the EAJA, a court must award attorney’s fees if: (1) the claimant is a "prevailing party;" (2) the claimant "incur[s]" attorney’s fees; (3) the government’s position is not "substan-tially justified;" and (4) "special circumstances" do not render an award of fees unjust. Murkeldove v. Astrue, 635 F.3d 784, 790 (5th Cir. 2011) (citing 28 U.S.C. § 2412(d)(1)(A)). Here, the Commissioner does not dispute that Plaintiff meets the four elements enumerated above, but rather objects to Plaintiff’s miscalculation of attorney’s fees as well as Plaintiff’s at-torney being the recipient of said fees. ECF No. 15 at 3. The undersigned will discuss each ob-jection in turn. A. Attorney’s Fees Miscalculation Plaintiff’s attorney requests $5,161.03 in attorney’s fees and $610.00 for paralegal fees ($5,771.03). ECF No. 14 at 2. The Commissioner does not object to the time or the enhanced hourly rate requested, but rather objects only to Plaintiff’s attorney’s calculation with regard to the attorney hours claimed. ECF No. 15 at 3. Unlike an award pursuant to sections 406(a) and 406(b), an EAJA award is not limited to a particular amount. Id. at 789. "EAJA fees are determined not by a percent of the amount recovered, but by the time expended and the attorney’s hourly rate, § 2412(d)(1)(B), capped in the mine run of cases at $125 per hour, § 2412(d)(2)(A)." Id.(internal quotations and citations omitted). Here, Plaintiff’s attorney requests 26.90 hours as "attorney hours" spent on the case. ECF No. 14 at 2. As the Commissioner correctly points out, however, Plaintiff’s attorney actually worked 20.80 hours and his paralegal worked 6.10 hours on the case. See ECF No. 14-3; see also ECF No. 14-4. Thus, Plaintiff and Commissioner agree to a total award of $4,600.69 ($3,990.69 in attorney’s fees (20.8 hours x $191.86) plus $610.00 in paralegal fees (6.1 hours x $100.00)). 2 Case 6:16-cv-00293-RP Document 17 Filed 06/15/17 Page 3 of 4 B. Receipt of Payment Plaintiff’s attorney requests the EAJA award be made payable to Plaintiff’s attorney rather than Plaintiff if the United States Department of Treasury determines that Plaintiff owes no debt that is subject to offset. ECF No. 14 at 3. Plaintiff’s attorney points to a Waiver of Direct Payment Plaintiff signed. Id. This waiver purports to allow the government to pay the EAJA award directly to Plaintiff’s attorney. Id. The Commissioner opposes this request. ECF No. 15 at 5. The Supreme Court has held that an EAJA fee award is payable to the prevailing litigant, not the attorney. Astrue v. Ratliff, 560 U.S. 586, 594 (2010) (directing Plaintiff to receive the EAJA award after offset). Following Ratliff’s express holding, courts in the Fifth Circuit have declined payment directly to Plaintiff’s attorney, even when Plaintiff has no debt to offset. See Jackson v. Astrue, 705 F.3d 527, 531 (5th Cir. 2013); see also Birge v. Colvin, No. 3:12-cv-177-G-(BH), 2014 WL 103665 (N.D. Tex. Jan. 10, 2014); Bentley v. Astrue, No. 3:10-cv-00032-L(BF)ECF, 2011 WL 2923970 (N.D. Tex. June 15, 2011); Johns v. Colvin, No. 3:13-cv-4420-BH, 2016 WL 1366267, at *3 (N.D. Tex. April 6, 2016) (string citing cases). Accordingly, the award of attorney’s fees in this case should be made payable directly to Plaintiff and mailed to Plaintiff’s counsel.1 1 Only a few district courts have held that an EAJA award may be paid directly to Plaintiff’s counsel, sub-ject to any debt offset. See Wormsbaker v. Colvin, 2014 WL 307487, at *1 (N.D. Tex. Jan 28, 2014); see also Bolden v. Colvin, 114 F. Supp. 3d 397, 400 (N.D. Miss. 2015); see also Beard v. Colvin, 2015 WL 4527040, at *2 (N.D. Miss. July 27, 2015). However, these cases are outliers that other courts have de-clined to follow. See Garza v. Colvin, 2013 WL 3289236, at *2 (N.D. Tex. June 28, 2013). 3 Case 6:16-cv-00293-RP Document 17 Filed 06/15/17 Page 4 of 4 III. ORDER Therefore, Plaintiff’s Motion (ECF No. 13) is GRANTED IN PART AND DENIED IN PART. After fixing Plaintiff’s initial miscalculation, Plaintiff’s motion for attorney’s fees is GRANTED, and Plaintiff is awarded $4,600.09 in attorney’s fees to be distributed as follows: (1) 20.8 hours of attorney work for litigating Plaintiff’s appeal at an hourly rate of $191.86 ($3,990.69); (2) 6.1 hours in paralegal fees at an hourly rate of $100.00 ($610.00). Insofar as Plaintiff requests an assignment of the EAJA award to Plaintiff’s attorney rather than Plaintiff is DENIED. The award of attorney’s fees in this case should be made payable directly to Plaintiff and mailed to Plaintiff’s counsel in the amount of $4,600.09. SIGNED June 15, 2017. _ _____________________________________ JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE 4