United States District Court, District of Columbia
R. GARTH SKVORAK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
E. BOASBERG United States District Judge.
action seeking benefits from the Social Security
Administration, the sole remaining issue relates to Plaintiff
Garth Skvorak's attorney fees. On July 10, 2017,
Magistrate Judge G. Michael Harvey, to whom this dispute had
been referred for full case management, issued his Report and
Recommendation regarding Plaintiff's Motion for
Attorney's Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412. Finding the amount sought reasonable, he
recommended that Plaintiff's request for fees be granted.
The Magistrate Judge, however, recommended denying
Skvorak's request that the fee award be assigned to his
attorney, believing that such an assignment did not comport
with the requirements of the Anti-Assignment Act, 31 U.S.C.
§ 3727. As Plaintiff's Objection to the Report,
filed under Local Civil Rule 72, now concedes that the check
may be made out to him, even if mailed to his attorney, the
Court will adopt the Report and award the fee requested.
applied for supplemental-security-income benefits on February
28, 2012, alleging he had become disabled in April 2008 as a
result of his Anxiety Disorder and Asperger Syndrome.
See ECF 8 (Social Security Administration Decision).
After being denied benefits, Skvorak sued the Commissioner of
the Social Security Administration (SSA). See ECF 1
(Complaint). He alleged that the decision of the
Administrative Law Judge was not supported by substantial
evidence, and that it failed to comport with pertinent legal
standards. See ECF 12 (Motion for Reversal of
Judgment) at 1. On February 28, 2017, Magistrate Judge Harvey
issued a 48-page opinion, concluding that the ALJ had failed
to adequately evaluate the record evidence and recommending
that this Court remand the matter to the SSA for further
proceedings. See ECF 16 (Report and Recommendation
Regarding Benefits) at 47. After receiving no objection from
either side, this Court adopted the Report and remanded
Plaintiff's case to the SSA. See ECF 17 (Order).
March 24, Plaintiff moved for an award of attorney fees
pursuant to the Equal Access to Justice Act (EAJA), which
“directs a court to award ‘fees and other
expenses' to private parties who prevail in litigation
against the United States if, among other conditions, the
position of the United States was not ‘substantially
justified.'” Commissioner, INS v. Jean,
496 U.S. 154, 155 (1990) (quoting 28 U.S.C. §
2412(d)(1)(A)). This matter was again initially considered by
Magistrate Judge Harvey, who, on July 10, issued a Report and
Recommendation. See ECF 21 (Report and
Recommendation Regarding Fees). The Report recommended that
Plaintiff's Motion be granted in part and denied in part.
Id. at 19. With respect to the amount of
fees to be awarded, the Magistrate Judge concluded that
Plaintiff's fee demand was reasonable, and he recommended
that Plaintiff be awarded $11, 196.35, subject to any
outstanding debts owed to the United States. Id.
respect to the manner of payment of such fees,
however, the Magistrate Judge recommended denying
Plaintiff's request that the award be remitted directly
to his attorney, pursuant to an assignment-of-fees clause in
counsel's engagement letter. Id. at 18; ECF 18,
Exh. 1 (Engagement Letter and Fee Agreement). The Government
had objected to this request, contending that the Supreme
Court's decision in Astrue v. Ratliff, 560 U.S.
586, 592-93 (2010), precludes such direct payment of EAJA
fees to an attorney. See ECF 19 (Opposition to
Motion for Fees). In his Report, although the Magistrate
Judge concluded that Ratliff presented no such bar
to the contractual assignment of fees, he went on to find
that Plaintiff's fee agreement was nonetheless invalid
under the Anti-Assignment Act (AAA), 31 U.S.C. § 3727.
See Report at 16-18. This Act, which was first
passed in 1853, prohibits the “assignment of any part
of a claim against the United States Government or of an
interest in the claim, ” unless certain conditions are
met. See 31 U.S.C. § 3727(a)(1). The Magistrate
Judge found that Plaintiff's assignment of his EAJA award
to counsel would run afoul of the AAA, and he therefore
recommended that the Court declare the assignment “null
and void” and “make no Order regarding the
direction such fees must be paid.” Report at 18.
permitted under Federal Rule of Civil Procedure 72(b) and
Local Civil Rule 72.3(b), Plaintiff filed his Objection to
the Report on July 25, 2017. See ECF 23. This Court
does not require a response to such Objection, and the
Government made no such filing in this case.
Federal Rule of Civil Procedure 72(b), once a Magistrate
Judge has entered his recommended disposition, a party may
file specific written objections. The district court must
review de novo any motion for attorney fees referred
to a Magistrate Judge and properly objected to. See
Baylor v. Mitchell Rubenstein & Assocs., P.C., 857
F.3d 939, 947 (D.C. Cir. 2017). The district court may then
“accept, reject, or modify the recommended
disposition.” Fed.R.Civ.P. 72(b)(3).
Court turns first to the Report's recommendation with
respect to the amount of Plaintiff's fee award.
Under the EAJA, a plaintiff may recover attorney fees and
expenses if he (1) is the prevailing party; (2) has incurred
such fees or expenses; (3) the position of the United States
in the action was not substantially justified; and (4) no
special circumstances make an award of fees unjust.
See 28 U.S.C. § 2412(d)(1)(A). Here, the Report
concluded that Plaintiff fulfilled each of these
requirements, and that the rates and hours requested were
reasonable. See Report at 6, 10-11, 13. The
Government never challenged the former before the Magistrate
Judge, and it did not object to his determination of the
latter. This Court's independent analysis agrees. In
particular, Skvorak's fee request reflected the
prevailing market rates, and the hours sought were reasonable
in light of the case's complicated and lengthy factual
record. The Court will therefore adopt the recommendation of
the Report that Plaintiff be awarded $11, 196.35, subject to
the offset needed to satisfy any outstanding debts owed to
the United States.
leads next to Skvorak's sole objection to the Report and
Recommendation - namely, the determination of to whom the
fees should be paid. He initially maintained that, per his
engagement letter with his counsel, such fees should be paid
directly to his attorney. Magistrate Judge Harvey believed
the AAA prohibited such a result. In his Objection, Plaintiff
raises a number of arguments in favor of interpreting the AAA
so as to not preclude such assignment of EAJA fees.
Alternatively, he proposes a compromise solution, in which,
in lieu of directly assigning EAJA fees to counsel, the award
instead will be made payable to Plaintiff, but the check will
be mailed to counsel. See Objection at 5; ECF 23,
Exh. 1 (Amendment to Agreement).
question of how the AAA applies to attorney fees involves a
remarkably complex and open area of law - one that has not
previously been addressed in this Circuit. Looking to those
courts that have considered the issue unfortunately
provides little clarity, as they have reached a wide range of
conclusions. See, e.g., United States v. Kim, 806
F.3d 1161, 1169 (9th Cir. 2015) (holding that pre-award
assignment of fees under Civil Asset Forfeiture Reform Act
was void under AAA); Turner v. Comm'r of Soc.
Sec., 680 F.3d 721, 723-26 (6th Cir. 2012) (permitting
preemptive assignment of EAJA fee awards to counsel);
Murkeldove v. Astrue, 635 F.3d 784, 794 (5th Cir.
2011) (holding that AAA is defense to assignment of attorney
fees, not ex ante bar to such assignment);
Steele-Malocu v. Astrue, No. 09-383, 2011 WL
1743457, at *1 (S.D. Ohio May 6, 2011) (collecting district
court cases finding that AAA applies to EAJA awards and
voiding any preemptive assignment of fees).
Skvorak's proposed compromise, resolving this case does
not require the Court to delve into an interpretation of the
AAA or wade into a circuit split. Rather, the Court finds
that Plaintiff's proposal presents a simple and
reasonable solution to his sole objection to the Magistrate
Judge's Report and one that does not run afoul of the
AAA. The Government, moreover, has not opposed this
resolution, and the practice of mailing fee awards to counsel
has been approved by many other courts. See, e.g., Serna
v. Colvin, 2015 WL 6584823, at *3 (D. Ariz. Oct. 30,
2015); Potter v. Colvin, 2014 WL 4230090, at *1 (D.
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