Hope Kerr, for Hank W. Kerr, Deceased, Plaintiff-Appellant,
Commissioner of Social Security, Defendant-Appellee.
Argued: June 15, 2017
from the United States District Court for the Western
District of Kentucky at Louisville. No. 3:15-cv-00313.
Mahesha P. Subbaraman, SUBBARAMAN PLLC, Minneapolis,
Minnesota, for Appellant.
Michael Jason Scoggins, SOCIAL SECURITY ADMINISTRATION,
Chicago, Illinois, for Appellee.
Mahesha P. Subbaraman, SUBBARAMAN PLLC, Minneapolis,
Minnesota, Gregory T. Marks, GREG MARKS, P.S.C., Louisville,
Kentucky, for Appellant.
O'Callaghan, SOCIAL SECURITY ADMINISTRATION, Chicago,
Illinois, for Appellee.
Before: NORRIS, MOORE, and STRANCH, Circuit Judges.
NELSON MOORE, Circuit Judge.
Plaintiff-Appellant Hope Kerr (on behalf of her deceased
husband Hank W. Kerr) appeals the judgment of a United States
Magistrate Judge denying as moot her motion under Federal
Rule of Civil Procedure 59(e). In April 2015, Kerr sought
judicial review of the final decision of the Acting
Commissioner of the Social Security Administration
("Commissioner") that Mr. Kerr was not entitled to
disability benefits prior to his death. After the district
court granted a joint motion to remand for further
administrative proceedings, Kerr moved for attorney fees
under the Equal Access to Justice Act ("EAJA").
Kerr specifically requested that any fee award be made
payable directly to her attorney pursuant to an assignment
between Kerr and the attorney. The district court concluded
that it could not award fees directly to Kerr's lawyer
because it concluded that the fee assignment violated the
Anti-Assignment Act ("AAA"). Kerr subsequently
filed a motion to amend or alter the district court's
judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure requesting that the court reverse the application
of the AAA to her assignment with her lawyer, honor the fee
award assignment, and order payment of the fees directly to
Kerr's counsel. Before the district court could rule on
the Rule 59(e) motion, the Commissioner paid the fee award to
Kerr's counsel. The district court subsequently denied as
moot Kerr's Rule 59(e) motion. For the reasons stated
below, we AFFIRM the district court's
April 27, 2015, Hope Kerr filed a civil action seeking
judicial review of the final determination of the Acting
Commissioner of the Social Security Administration that
Kerr's husband was not disabled and therefore not
entitled to any disability insurance benefits prior to the
time of his death. R. 1 (Compl. at 1) (Page ID #1). Because
Kerr was living with her husband at the time of his death,
she was due to receive any payment owed to Mr. Kerr and was a
proper substitute party for Mr. Kerr in any proceedings
before the Social Security Administration. 20 C.F.R.
§§ 404.503(b)(1), 416.542(b)(1).
parties consented to have the case heard by a United States
Magistrate Judge. R. 11 (Consent Order at 1) (Page ID #617).
The Commissioner did not oppose Kerr's request for a
remand and the parties stipulated to reversal and remand of
the Commissioner's decision pursuant to 42 U.S.C. §
405(g). R. 20 (Order at 1) (Page ID #652). Subsequent to the
remand, Kerr moved in the district court for an award of $3,
206.25 in attorney fees pursuant to the Equal Access to
Justice Act. R. 22 (Fee Mot. at 2) (Page ID #656); 28 U.S.C.
§ 2412(d). Kerr specifically requested that any fees
awarded "be made payable to Plaintiff's counsel . .
. ." Id. Kerr attached to her motion an
"Affidavit and Assignment of EAJA Fee, " that was
signed on March 23, 2016. R. 23 (EAJA Assignment) (Page ID
#661-62). The assignment document stated that, "I assign
any right or interest I may have in the award of an EAJA fee
and understand that the EAJA award shall be paid to my
attorney, Greg Marks, to compensate counsel for the work
performed on this case in the U.S. District Court."
Id. Kerr specifically "ask[ed] that the EAJA
award be made payable to Greg Marks and not to me as
Plaintiff." Id. at Page ID #661. The
Commissioner responded to Kerr's EAJA fee motion by
stating that she "does not oppose [Kerr's] motion
for attorney fees in the amount of $3, 206.25, " and
that "[a]fter the Court enters the above award, if . . .
[Kerr] owes no pre-existing debt subject to offset, "
then the Commissioner would "direct that the award be
made payable to [Kerr's] attorney pursuant to the EAJA
assignment duly signed by [Kerr]." R. 24 (Comm'r
Resp. at 1) (Page ID #663).
April 29, 2016, the district court granted Kerr's motion
for attorney fees in the amount of $3, 206.25. R. 25 (Order
at 3) (Page ID #669). The district court declined to honor
Kerr's assignment and concluded that it was required to
order payment of the award to Kerr as the prevailing party.
Id. Specifically, the district court concluded that
it could not "ignore the Anti-Assignment Act, "
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."
Id. at 4 (Page ID #670) (internal quotation marks
omitted). After sua sponte invoking the AAA, the
district court noted that "[w]hile the Sixth Circuit has
not directly spoken on this issue, district courts within the
Sixth Circuit have agreed that any assignment of an EAJA
award that predates the actual award of fees is void."
Id. (internal quotation marks omitted). The district
court therefore declared Kerr's assignment of her EAJA
award to her counsel void because "the assignment
predate[d] the [district court's] award of fees."
Id. at 5 (Page ID #671). Finally, the district court
"le[ft] it to the Commissioner's discretion to
determine whether to waive the Anti-Assignment Act and make
the fee payable to Mr. Marks." Id. at 6 (Page
responded to the district court's order by filing a
motion pursuant to Federal Rule of Civil Procedure 59(e)
seeking: (1) to "reverse the [district court's]
application of the Anti-Assignment Act"; and (2) to
issue an order requiring payment of the fee award directly to
Kerr's counsel. R. 26 (Mot. at 25) (Page ID #698). The
Commissioner responded that she would "exercis[e] her
discretion to accept [Kerr's] assignment" and
"make the EAJA award payable to counsel." R. 27
(Response at 1) (Page ID #760). The Commissioner further
suggested that the district court should deny as moot the
Rule 59(e) motion because the Commissioner had
"deci[ded] to waive compliance with the [Anti-Assignment
Act], [and] granting [Kerr's] motion would not provide
h[er] with any additional relief." Id. at 1-2
(Page ID #760-61). Additionally, the Commissioner argued that
"[w]hether the Anti-Assignment Act (AAA) applies to the
assignment of EAJA fees would only be relevant to the outcome
of this matter if the Commissioner declined to waive the AAA
in this particular case." Id. at 760. Kerr
filed a reply to the Commissioner's response and argued
that: (1) the district court incorrectly ruled that the AAA
applied in EAJA cases; and (2) Kerr's rule 59(e) motion
was not moot in light of the "capable of repetition yet
evading review" and "voluntary cessation"
exceptions to mootness. R. 28 (Reply at 4) (Page ID #767).
October 17, 2016, the district court issued a memorandum
opinion and order denying as moot Kerr's motion to amend
pursuant to Rule 59(e). The district court concluded that
"Kerr asked for the award to be made payable to counsel.
The Commissioner made the award payable to counsel." R.
29 (Rule 59(e) Order at 2) (Page ID #773). Because the
district court concluded that Kerr's motion was moot, it
did "not consider whether it clearly ...