Opinion
Case No. CV 197-247
January 15, 2003
ORDER
Counsel for Plaintiff in the above-captioned case, Edward B. Claxton ("Claxton"), has brought a motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). (Doc. No. 47). On November 23, 1998, this case was remanded to the Commissioner of Social Security, which resulted in a favorable award to Plaintiff. Claxton's contract with his client provided that he would receive 1/4 of any awarded past due benefits as attorney's fees, subject to the Commissioner's or the Court's approval. The Commissioner awarded Claxton $12,000 for work performed under 42 U.S.C. § 406(a), $6,554.12 shy of the full 1/4 contracted fee. Claxton filed a motion in this Court for the remaining amount under 42 U.S.C. § 406(b). Although the Commissioner objected to Claxton's motion, the Court granted Claxton's motion on September 11, 2002. Now Claxton seeks his fees in filing the motion for the $6,554.12, alleging that the Commissioner was not substantially justified in objecting to his motion.
The EAJA provides for an award of attorney's fees when the party seeking the award is the "prevailing party." 28 U.S.C. § 2412(d)(1)(A) (B). Although Plaintiff is listed as the petitioner for the fees here, there is no doubt that it is his attorney who seeks the fee in this case. Gisbrecht v. Barnhart, 122 S.Ct. 1817, 1823, n. 6 (2002) ("Although the claimants were named as the appellants below, and are named as petitioners here, the real parties in interest are their attorneys, who seek to obtain higher fee awards under § 406(b)."). In fact, an award under § 406(b) comes out of the pocket of the prevailing claimant, not from the government. Id. at 1825. ("Unlike 42 U.S.C. § 1988 and EAJA, 42 U.S.C. § 406(b) does not authorize the prevailing party to recover fees from the losing party. Section 406(b) is of another genre: It authorizes fees payable from the successful party's recovery.") (citations omitted)). As Defendant correctly noted, "[o]nly prevailing parties, not their attorneys[,] can assert a claim under the EAJA." Def.'s Brief, p. 3. (citing Knight v. United States, 982 F.2d 1573, 1584 (Fed. Cir. 1993)). Claxton is not the prevailing party, and, therefore, is ineligible for an award of attorney's fees.
Accordingly, Claxton's motion for fees and expenses under the EAJA is hereby DENIED.