Opinion
5:22-cv-00401-MTT-CHW
04-25-2024
MARQUE JACQUES HARDEN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY Defendant.
Social Security Appeal
REPORT AND RECOMMENDATION
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff's motion for the direct payment of attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; (Doc. 27). A recommendation to grant Plaintiff's attorney's fees motion and award $6,273.17 and $939.80 in attorney's fees was entered on December 5, 2023. (Doc. 25). However, the recommendation was inadvertently labeled as an “Order,” and judgment was entered that same day. (Doc. 26). There were no objections filed, and the mislabeled recommendation apparently did not prevent attorney's fees being remitted to Plaintiff. See (Doc. 27, p. 3, ¶ 8).
Plaintiff now returns to the Court and moves for a new order for the payment of fees because the previously issued check was stolen and subjected to “check washing.” (Id.). Newly issued payment is expected to be remitted, but Plaintiff, through counsel, now asks that the Court specifically order that the re-issued payment be made in two checks and made payable to Plaintiff's counsel in accordance with the fee assignment contract. (Doc. 27). Plaintiff's counsel represents that the Commissioner has no objection. A new order authorizing re-issued payment is appropriate, but as explained below, ordering the Government to accept Plaintiff's fee assignment is not. Therefore, it is recommended that Plaintiff's motion be granted in part and denied in part.
It is recommended that Plaintiff's motion be granted to the extent that a second order authorizing payment to be reissued is required and appropriate, especially as no order awarding attorney's fees has ever been entered. However, the motion should be denied to the extent the motion seeks payment to be remitted directly to counsel. The decision in Astrue v. Ratliff, 560 U.S. 586 (2010), dictates that a fee award be made payable to the Plaintiff as the prevailing party, unless Plaintiff owes a federal debt. Whether Plaintiff owes such a debt is not for this Court to determine, and it is within the Government's discretion to accept Plaintiff's assignment of EAJA fees and pay the fees directly to Plaintiff's counsel.
It is hereby RECOMMENDED that Plaintiff's motion (Doc. 27) be GRANTED in part in to the extent a new order is needed to re-issue payment for the award of $7,212.97 in attorney's fees. It is hereby RECOMMENDED that Plaintiff's motion be DENIED in part to the extent it requests the Court to direct the Government to pay Plaintiff's counsel directly. However, should the Government accept Plaintiff's fee assignment, the award should be divided as follows: $6,273.17 to David B. Goetz and $939.80 to Edward B. Claxton.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein with the presiding District Judge WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED