Summary
rejecting recommendation that "[t]he Commissioner be directed to determine whether Plaintiff owes a debt to the government; if the United States Department of the Treasury determines that Plaintiff does not owe such a debt, the Government be directed to accept Plaintiff's assignment of EAJA fees and pay the fees directly to Plaintiff's counsel"
Summary of this case from Beshia v. Comm'r of Soc. Sec.Opinion
Case No. 6:17-cv-623-Orl-37MCR
12-10-2018
FELICITA BURGOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
In the instant action, Plaintiff appealed a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for disability benefits. (Doc. 1.) Following the Court's Order reversing the Commissioner's decision (Doc. 24), Plaintiff moved for an award of attorney fees totaling $3,660.17, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA") and reimbursement expenses of $43.17 pursuant to 28 U.S.C. § 2412(a)(1). (Doc. 26 ("Motion").) The Motion was unopposed, and on referral, U.S. Magistrate Judge Monte C. Richardson recommends that the Court: (1) grant the Motion; and (2) the Commissioner be directed to determine whether Plaintiff owes a debt to the government, and if not, the Government be directed to accept Plaintiff's assignment of fees and pay the fees directly to Plaintiff's counsel ("Assignment Recommendation"). (Doc. 27 ("R&R").)
On March 30, 2017, Plaintiff assigned her right to any fees awarded under the EAJA to her counsel. (See Doc. 26-13 ("Assignment").) --------
The parties did not object to the R&R, and the time for doing so has now passed. As such, the Court has examined the R&R only for clear error. See Wiand v. Wells Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006). In doing so, the Court takes issue with only one portion of the R&R—Magistrate Judge Richardson's Assignment Recommendation. (Doc. 27, p. 4.) The decision to honor an assignment is left to the discretion of the Commissioner, Astrue v. Ratliff, 560 U.S. 586, 597 (2010), once the Department of Treasury determines that Plaintiff does not owe the Government a debt, 31 U.S.C. § 3727(b). As such, the Court rejects the Assignment Recommendation. In the absence of any other clear error, the balance of the R&R is due to be adopted.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. U.S. Magistrate Judge Monte C. Richardson's Report and Recommendation (Doc. 27) is ADOPTED IN PART AND REJECTED IN PART:
a. The Assignment Recommendation is REJECTED.
b. In all other respects, the R&R is ADOPTED, CONFIRMED, and made a part of this Order.
2. Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C.A. Section 2412 (Doc. 26) is GRANTED IN PART AND DENIED IN PART:
a. The Motion is GRANTED to the extent that the Court awards Plaintiff attorney fees and reimbursement expenses.
b. The Clerk is DIRECTED to enter judgment in favor of Plaintiff and
against Defendant in the amount of $3,660.17 for attorney and paralegal fees and $43.17 for expenses.
c. In all other respects, the Motion is DENIED.
3. Notwithstanding the Court's rejection of the Assignment Recommendation, the Commissioner may exercise discretion to honor the Assignment if the Department of Treasury determines that Plaintiff does not owe the Government a debt.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 10, 2018.
/s/_________
ROY B. DALTON JR.
United States District Judge Copies to:
Counsel of Record