Kerr v. Commissioner of Social Security, No. 16-6673 (6th Cir. 2017)Annotate this Case
Kerr sought judicial review of a determination that Kerr’s husband was not entitled to Social Security disability insurance benefits before his death. Kerr was due to receive any payment owed to Mr. Kerr. The parties stipulated to reversal and remand under 42 U.S.C. 405(g). Kerr then sought an award of attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), with any fees to “be made payable to Plaintiff’s counsel,” attaching an “Affidavit and Assignment of EAJA Fee.” The Commissioner did not oppose the motion. The district court granted the award, declined to honor Kerr’s assignment, and concluded that it was required to order payment to Kerr as the prevailing party. The court held that it could not “ignore the Anti-Assignment Act,” (AAA) which prohibits “an assignment of a claim against the United States that is executed before the claim is allowed, before the amount of the claim is decided, and before a warrant for payment of the claim has been issued” but “le[ft] it to the Commissioner’s discretion" to determine whether to waive the AAA and make the fee payable to the attorney. The Commissioner accepted the assignment and successfully requested that the district court deny as moot Kerr’s Rule 59(e) motion. The Sixth Circuit, applying an exception to the mootness doctrine, upheld the application of the AAA to the EAJA. Under the EAJA awards are made to the prevailing party, not the prevailing party’s lawyer.