Calvert v. Astrue

Filing 27

ORDER granting 23 Motion for Attorney Fees. Signed by Honorable Timothy D. DeGiusti on 11/21/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

JOELEAN CALVERT,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,

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NO. CIV-10-813-D

Defendant.
ORDER
Before the Court is the Plaintiff’s Application for Attorney Fees [Doc. No. 23] pursuant to
28 U.S.C. § 2412(d), the Equal Access to Justice Act (“EAJA”).

As Plaintiff correctly states, the

EAJA permits an award of attorney fees and expenses to a prevailing plaintiff in certain actions
against the government, including Social Security claims. In this case, Plaintiff prevailed in her
action against the Commissioner of the Social Security Administration, as the Court reversed the
Commissioner’s denial of Plaintiff’s application for benefits and remanded the matter for further
agency proceedings. See November 9, 2011 Order [Doc. No. 24] and Judgment [Doc. No. 25].1
As a “prevailing party” within the meaning of the EAJA, Plaintiff is entitled to an award of
reasonable attorney fees. See, e.g., Shalala v. Schaefer,509 U.S. 292 (1993).
Plaintiff seeks an award of $6,664.20 in attorney fees and costs for the services performed
in this case. Plaintiff’s counsel has submitted documentation reflecting the work performed and the
time incurred for each service rendered to Plaintiff in this action. See list attached to the Motion.

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Plaintiff’s application for fees was filed prematurely, as it preceded the Court’s Order adopting the Report and
Recommendation of United States Magistrate Judge Valerie K. Couch. Because the Court adopted the Report and
Recommendation on the same date, however, the application was not stricken, and the Court will consider it as timely.
Counsel is cautioned that future EAJA fee applications should not be filed until a Court order is filed.

The Court has reviewed the documentation submitted by Plaintiff and finds that the requested
fee of $6,664.20 represents a fair and reasonable fee for the work performed by Plaintiff’s attorney
in this case. The requested fee and applicable hourly rates are also consistent with Social Security
regulations governing EAJA attorney fees.
Defendant does not object to Plaintiff’s status as a prevailing party entitled to recover fees
and expenses pursuant to the EAJA, nor does he object to the amount of the attorney fee sought by
Plaintiff. As Defendant states, however, the EAJA fee must be paid directly to Plaintiff and not
to her counsel. Manning v. Astrue, 510 F. 3d 1246, 1249-55 (10th Cir. 2007). Furthermore, if
Plaintiff’s counsel is ultimately granted attorney fees pursuant to 42 U. S. C. § 406(b), he must
refund the smaller of the EAJA or the § 406(b) award to Plaintiff. Weakley v. Bowen, 803 F.2d 575,
580 (10th Cir. 1986).
Accordingly, Plaintiff’s Motion [Doc. 23] for approval of an EAJA attorney fee award in the
amount of $6,664.20 is GRANTED. Defendant is directed to pay that amount directly to Plaintiff,
in accordance with the requirements of the EAJA and the Tenth Circuit Court of Appeals.
IT IS SO ORDERED this 21st day of November, 2011.

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