Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spencer v. Commissioner of Social Security

April 15, 2009

JAMES SPENCER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1).

II. BACKGROUND

Plaintiff filed this action on June 12, 2003, seeking judicial review of the Commissioner's final decision denying his claim for disability insurance benefits. See Dkt. No. 1. In a Report-Recommendation and Order dated August 22, 2007, Magistrate Judge Treece recommended that this Court vacate the Commissioner's decision and remand solely for the calculation of benefits pursuant to sentence four of 42 U.S.C. § 405(g). See Dkt. No. 9. This Court adopted that Report-Recommendation and Order in its entirety, see Dkt. No. 10, and entered judgment in Plaintiff's favor, see Dkt. No. 11.

Plaintiff then filed the pending motion for attorney's fees pursuant to the EAJA, see Dkt. No. 12, to which Defendant filed an objection, see Dkt. No. 14. The following is the Court's written determination of that motion.

III. DISCUSSION

Plaintiff seeks attorney's fees and costs in the total amount of $2,365.10, comprised of attorney's fees in the amount of $2,212.50 for 14.75 hours of work billed at an hourly rate of $150.00 and costs in the amount of $152.60 for filing fees and certified, return receipt mailings. See Affirmation of Thomas C. Erwin dated September 28, 2007, at ¶ 2 & Exhibit "A."

In support of his motion, Plaintiff contends that he is a prevailing party within the meaning of 28 U.S.C. § 2412(d)(1) and is, therefore, entitled to attorney's fees and costs. See id. at ¶ 6. Plaintiff also requests that the Court direct Defendant to pay the award of attorney's fees and costs directly to his attorneys. See id. at ¶ 7.

Defendant does not contest the amount of Plaintiff's EAJA request. See Defendant's Memorandum of Law at 1. However, Defendant does oppose the motion "to the extent that [P]laintiff's counsel, Thomas C. Erwin, insists that this Court pay the EAJA fees directly to the Erwin, McCane law firm instead of [P]laintiff." See id. at 2. In support of this position, Defendant asserts that, "[b]y law, the fees belong to [P]laintiff because he is the prevailing party. Therefore, the fees must be paid directly to [P]laintiff." See id. (citing Oquachuba v. INS, 706 F.2d 93 (2d Cir. 1983); Soto-Valentin v. Heckler, 619 F. Supp. 627, 632 (E.D.N.Y. 1985); Eustache v. Sec'y of Health & Human Servs., 601 F. Supp. 176, 178 (E.D.N.Y. 1985); Tripodi v. Heckler, 100 F.R.D. 736, 738 (E.D.N.Y. 1984)) (other citations omitted).

Prior to 2006 or 2007, Defendant's practice had been to remit an award of attorney's fees under the EAJA directly to the plaintiff's counsel. However, Defendant now takes the position that any EAJA award must be paid directly to the prevailing plaintiff and not to that plaintiff's counsel. Although the Second Circuit has not had the opportunity to address this change in position, the weight of authority appears to be contrary to Defendant's current position. See Quade v. Barnhart, 570 F. Supp. 2d 1164 (D. Ariz. 2008); Garner v. Astrue, No. 06-CV-769C, 2008 WL 2357409 (W.D.N.Y. June 4, 2008); Stephens v. Astrue, 539 F. Supp. 2d 802 (D. Md. 2008); Vargas v. Comm'r of Soc. Sec., No. 07-3586, 2008 WL 699581 (D.N.J. Mar. 12, 2008); Hagman v. Astrue, 546 F. Supp. 2d 1294 (M.D. Fla. 2007).

The court's decision in Garner is directly on point. In that case, as in this one, the defendant did not contest the amount of the EAJA request; rather, the defendant only opposed the motion to the extent that the plaintiff's attorney sought to have the award paid directly to him.

See Garner, 2008 WL 2357409, at *1. The court noted that this was a change in the defendant's position and that the change "appear[ed] to be motivated by the government's recent ability, under the Department of Treasury's Offset Program, to electronically track those persons owing federal debts and potentially to charge an offset against an EAJA attorney fee award paid directly to a prevailing claimant." Id.

In support of his position, the defendant in Garner "contend[ed] that the plain language of the EAJA dictat[ed] that fee awards be made payable to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.