Milburn v. Astrue

Filing 21

ORDER granting 20 Motion for Attorney Fees. Signed by Honorable Timothy D. DeGiusti on 1/31/2014. (mb)

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

SHEVAWN S. MILBURN,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)
ORDER

CIV-12-886-D

Before the Court is the Plaintiff’s Application for Attorney Fees [Doc. No. 20] 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 October 23, 2013 Order [Doc. No. 18] and Judgment [Doc. No. 19]. 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 $5,837.20 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 Exhibit A to application.
Defendant has not responded to the application, and the time for doing so has expired.
1

Effective February 14, 2013, Carolyn W. Colvin was named Acting Commissioner of the Social Security
Administration. Pursuant to Fed. R. Civ. P. 25(d)(1), she is substituted for former Commissioner Michael J. Astrue
as the defendant in this action.

The Court has reviewed the documentation submitted by Plaintiff and finds that the requested
fee of $5,837.20 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.
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. 20] for approval of an EAJA attorney fee award in the
amount of $5,837.20 is GRANTED. Defendant is directed to pay that amount directly to Plaintiff,
in accordance with the requirements of EAJA and the Tenth Circuit Court of Appeals. Defendant
is further directed to mail the EAJA fee to Plaintiff in the case of Plaintiff’s attorney as follows: c/o
Timothy M. White, 7906 East 55th Street, Tulsa, OK 74145-7818.
IT IS SO ORDERED this 31st day of January, 2014.