* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

October 28, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EVA S. GALLAWAY,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner

of Social Security Administration,

Defendant-Appellee.

CAROL J. WHITEMAN,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner

of Social Security Administration,

Defendant-Appellee.

No. 08-5080

(D.C. No. 4:06-CV-00412-SAJ)

(N.D. Okla.)

No. 08-5082

(D.C. No. 4:-06-CV-00237-SAJ)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.
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In the district court, social-security claimants Eva S. Gallaway and Carol J.

Whiteman each moved for an award of attorney fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412. In their respective reply briefs, they

argued that the award should be paid directly to their attorney, Timothy White. 

The district court agreed and ordered the awards paid to White. Afterward,

Gallaway and Whiteman, still represented by White, requested EAJA fees for

litigating the payee issue. The district court denied their requests.

Gallaway and Whiteman now appeal. Because their appeals present the

same legal issue and the same relevant facts, we resolve both appeals in this order

and judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in

both appeals.

BACKGROUND

In 2006, Gallaway and Whiteman each filed suit in federal district court,

challenging decisions by the Commissioner of the Social Security Administration

that denied their applications for benefits. The district court reversed both

decisions and remanded the cases to the agency for further proceedings.

In October and November 2007, Gallaway and Whiteman each filed in the

district court motions for EAJA fees (the original EAJA proceedings). In

response to the motions, the Commissioner did not object to an award of EAJA
1 The EAJA’s thirty-day filing rule is not jurisdictional. Scarborough v.

Principi, 541 U.S. 401, 414 (2004). On appeal, the Commissioner does not argue

that Gallaway’s and Whiteman’s fee motions were untimely.

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fees or to the amounts requested; rather, he argued that the awards should be paid

to the parties, rather than to their attorney. Gallaway and Whiteman each filed a

reply brief, contending that the EAJA required that any award be paid to attorney

White. Agreeing with Gallaway and Whiteman, the district court granted the

motions and ordered the awards paid to White. Several weeks later, this court

held in an unrelated case that an EAJA fee award must be paid to the prevailing

party, rather than the attorney. See Manning v. Astrue, 510 F.3d 1246, 1249-55

(10th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3637 (May 22, 2008).

In February 2008, Gallaway and Whiteman each moved for an award of

EAJA fees for preparing the reply briefs in the original EAJA proceedings and for

preparing the second round of EAJA motions. The Commissioner opposed the

motions, arguing that they were untimely and that the time spent preparing the

reply briefs was not compensable because those briefs sought to vindicate only

White’s interests. The district court characterized the motions as supplementing

the original EAJA proceedings and denied them as contrary to Manning.

DISCUSSION

Fees under the EAJA are available if (1) a fee application is submitted to

the court within thirty days of the final judgment;1

 (2) the claimant was the

“prevailing party”; (3) the government’s position was not “substantially
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justified”; and (4) no “special circumstances make an award unjust.” See 28

U.S.C. § 2412(d)(1)(A) & (B); see also Comm’r, INS v. Jean, 496 U.S. 154, 158-

62 (1990). We review a district court’s denial of attorney fees under the EAJA

for abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 559 (1988). “A

district court abuses its discretion when it commits an error of law or makes

clearly erroneous factual findings.” Wyandotte Nation v. Sebelius, 443 F.3d 1247,

1252 (10th Cir. 2006).

Gallaway and Whiteman argue that the district court abused its discretion

because it “appl[ied] Manning retroactively.” Aplt. Opening Br. at 15. It is

well-established, however, that “[j]udicial decisions operate retroactively because

we generally regard them as an expression of pre-existing law.” Pippin v.

Burlington Resources Oil & Gas Co., 440 F.3d 1186, 1198 n.13 (10th Cir. 2006)

(quotation omitted).

But with that said, the district court’s application of Manning is a bit

confusing. The standard that the district court’s discretion is to be measured

against in a fees for fees case is whether the amount of the fee is reasonable. See

Jean, 496 U.S. at 160-61. That is, once the determination has been made that the

government’s position was not substantially justified, then the court should

determine what fee is merited for all aspects of the litigation that deal with

creating a benefit to the claimant. See id. at 161 (citing Hensley v. Eckerhart, 461

U.S. 424, 433-37 (1983)). Manning simply determines that the proper payee of an
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EAJA attorney fee award is, somewhat counterintuitively (but in line with the

statute’s clear language) the claimant. See Manning, 510 F.3d at 1255. Since

Manning now makes clear that the parties’ reply briefs urging that the fees be

directly paid to attorney White are legally incorrect, the district court must have

been citing Manning for the proposition that time taken to advocate this position

was not therefore a reasonable part of an EAJA fee. In all events, we can affirm

for any reason justified by the record, see Lambertsen v. Utah Dep’t of Corr., 79

F.3d 1024, 1029 (10th Cir. 1996), and this conclusion meets that requirement.

This comports with our decision in Sanders v. Astrue, where this court held

that a second EAJA award for litigation efforts that “resulted only in having the

first [EAJA] award paid directly to the attorneys” would not be reasonable

because those efforts did not benefit the client. Sanders, Nos. 07-7102 & 07-

7104, 2008 WL 2926439, at *2 (July 31, 2008) (unpublished). In reaching this

holding, this court noted that reasonableness is largely dependent on the results

obtained for the client, see id. (citing Jean, 496 U.S. at 161, and Hensley, 461

U.S. at 440), and that “[t]he EAJA was not enacted for the benefit counsel,” id.

(quotation omitted).

We find Sanders factually indistinguishable from the instant appeals and

we agree with its reasoning. Because Gallaway’s and Whiteman’s reply briefs

were directed solely to the interests of their counsel in obtaining direct payment

of the EAJA awards, the time White spent preparing those briefs and then moving
2 Additionally, we note that EAJA fees are paid from agency funds to

penalize the Commissioner for taking an unjustified legal position in the agency

proceedings or in the civil action. Orner v. Shalala, 30 F.3d 1307, 1309 (10th

Cir. 1994). It is difficult to dispute that the EAJA’s punitive purpose continues to

function when fees are awarded for having litigated fee issues, like time spent

disputing the Commissioner’s unjustified legal position. Specifically, there is

still a correlation between the unjustified legal position and a second award of

fees. But in the instant case, there is no correlation between anything the

Commissioner did in the agency proceedings or in the civil action and his position

in the fee litigation that a claimants’ attorney is not the proper payee for an EAJA

award. In this case, the EAJA’s rationale for punishment fails.

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for a fees for fees award was not compensable under the EAJA.2 Accordingly, the

district court did not abuse its discretion in denying Gallaway’s and Whiteman’s

fees for fees motions.

CONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Robert H. Henry

Chief Judge