Opinion
Case No. 6:16-cv-1670-Orl-37TBS
04-19-2018
KENNETH BLAKE WELCH, 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 his application for disability and disability insurance benefits. (Doc. 1.) Following the Court's Order reversing the Commissioner's decision (Doc. 21), Plaintiff moved for an award of attorney fees totaling $5,489.67, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). (Doc. 23 ("Motion").) The Motion was unopposed, and on referral, U.S. Magistrate Judge Thomas B. Smith recommends that the Court: (1) grant the Motion; and (2) authorize payment to Plaintiff's counsel if the Department of Treasury determines that Plaintiff does not owe the Government a debt ("Assignment Recommendation"). (Doc. 24 ("R&R").)
On March 30, 2018, Plaintiff assigned his right to any fees awarded under the EAJA to his counsel. (See Doc. 23-3 ("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 Marcort 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 Smith's Assignment Recommendation. (Doc. 24, p. 2.) 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 Thomas B. Smith's Report and Recommendation (Doc. 24) 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 Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Doc. 23) is GRANTED IN PART AND DENIED IN PART.
a. The Motion is GRANTED to the extent that the Court awards Plaintiff $5,489.67 in attorney fees.
b. 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 April 19, 2018.
/s/_________
ROY B. DALTON JR.
United States District Judge Copies to:
Counsel of Record