Opinion
Civ. No. 08-1045 MV/RLP.
February 22, 2010
MEMORANDUM OPINION AND ORDER AWARDING FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
THIS MATTER comes before the Court on Plaintiff's Motion for an award of attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) in the amount of Three Thousand Two Hundred and 30/100 Dollars ($3,200.30) of attorneys' fees plus costs in the amount of Three Hundred Sixty-six and 13/100 Dollars ($366.13). [Docket No. 28]. In his Response, Defendant states that he has no objection to the amount of fees as requested, but requests that the award be payable to Plaintiff as the prevailing party. [Docket No. 29].
The plain language of 28 U.S.C. § 2412(d)(1)(A) states, the "court shall award to a prevailing party . . . fees and other expenses." The Tenth Circuit has previously found that "an EAJA award is to the claimant." McGraw v. Barnhart, 450 F.3d 493, 497-98 (10th Cir. 2006); see also Manning v. Astrue, 510 F.3d 1246 (10th Cir. 2007).
The Court FINDS:
(1) That Plaintiff's request for fees under the Equal Access to Justice Act is reasonable, and
(2) The proper payee for fees awarded under the Equal Access to Justice Act is Plaintiff.IT IS THEREFORE ORDERED that Plaintiff's Motion for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), in the amount of Three Thousand Two Hundred and 30/100 Dollars ($3,200.30) plus costs in the amount of Three Hundred Sixty-six and 13/100 Dollars ($366.13) is granted.
IT IS FURTHER ORDERED that the Commissioner shall make such fees payable to Plaintiff, but shall remit said fees to Plaintiff by sending payment in care of the offices of his attorney, The Martone Law Firm.
IT IS FURTHER ORDERED that in the event of a subsequent award of fees pursuant to 42 U.S.C. § 406(b), the refund provision of Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986) will apply.