FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ROCKY A. BROWN,
Plaintiff-Appellant,
v. No. 07-6150
(D.C. No. CIV-06-794-M)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and MURPHY, Circuit Judges.
Rocky A. Brown appeals from the district court’s order awarding him
attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
as the prevailing party, instead of awarding them directly to his counsel. He
argues the district court should have awarded the fees directly to counsel since he
had assigned to counsel his right to the fees award. Exercising jurisdiction over
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
this appeal pursuant to 28 U.S.C. § 1291, we affirm the district court’s order
awarding the fees to Mr. Brown.
I.
After the district court remanded Mr. Brown’s request for Supplemental
Security Income to the Commissioner for further proceedings, Mr. Brown filed a
motion for attorney’s fees under the EAJA. He requested fees in the amount of
$4,747.80 and asked that the award be paid directly to his counsel in accordance
with the provisions of a contract in which he assigned his rights to an EAJA
award to counsel. 1 The Commissioner conceded the fees amount, but objected to
direct payment to counsel. Based on the express language in the EAJA, the
district court found that the fees award was payable to Mr. Brown, the prevailing
party, not to his attorneys. The court decided that the language contained in the
contract entered into by Mr. Brown and his attorneys did not change the court’s
finding that the award was payable to Mr. Brown, because the contract language
“cannot override the EAJA statute.” Aplt App. at 70. Additionally, the court
found that “the interpretation and enforcement of the contract is not a proper
matter to be addressed through the instant application for EAJA fees.” Id.
Mr. Brown appealed.
1
In relevant part, the contract provided that “[EAJA] fees are generally made
payable directly to Attorney. However, if such fees are made payable to
Claimant, Claimant hereby assigns all of his/her rights to such payments to
Attorney as partial payment for the attorney fee.” Aplt. App. at 23.
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II.
As an initial matter, we consider the Commissioner’s argument that we lack
jurisdiction to consider this appeal on the grounds that the appeal is moot and
Mr. Brown does not have standing to appeal. Yellow Cab. Coop. Ass’n v. Metro
Taxi, Inc. (In re Yellow Cab Coop. Ass’n), 132 F.3d 591, 594 (10th Cir. 1997)
(“Both standing and mootness are threshold jurisdictional issues.”). Pointing to
statements in Mr. Brown’s appellate opening brief, the Commissioner argues that
this case is moot because counsel has been paid the full amount of the EAJA fees
and that Mr. Brown lacks standing to appeal because he received the total
requested EAJA fees and his attorneys were paid in full. See Aplt. Opening Br. at
5, 27, 28, 30 (stating counsel has been paid fees in full).
In his reply brief, however, Mr. Brown clarifies that the United States
Treasury check, which was made out to him in care of counsel, was deposited in
counsels’ trust account in Mr. Brown’s name pending a final judicial ruling on
ownership of the money. Aplt. Reply Br. at 1-2; id., Attach. 1. Documentation
attached to that brief supports this assertion. Id., Attach. 2, 3.
In Oklahoma, attorneys are required to keep money belonging to a client in
a trust account, and they must separate their own money from that of their clients.
See State ex rel. Okla. Bar Ass’n v. Bills, 951 P.2d 1090, 1091-92 (Okla. 1997)
(citing Okla. Rules of Prof’l Conduct R. 1.15(a) and Okla. Rules Governing
Disciplinary Proceedings R. 1.4(a), (b)). Because the EAJA fees award is being
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held in counsels’ trust account for Mr. Brown, the money is still his and counsel
does not own it.
We therefore conclude that this appeal is not moot. Mr. Brown has the
required interest needed for this appeal to proceed on his issue that the district
court should have awarded the fees directly to counsel. See Utah Animal Rights
Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1256 (10th Cir. 2004) (“A case is
moot when the issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.”) (quotations and citations omitted). In
addition, we conclude that Mr. Brown has standing to bring this appeal. He did
not receive all of the relief he requested in the district court, payment of the fees
directly to counsel, so he may appeal the district court’s decision denying in part
that relief. See Forney v. Apfel, 524 U.S. 266, 271 (1998) (recognizing that
aggrieved party usually can appeal decision that grants in part and denies in part
remedy party requested). Accordingly, we proceed to the merits of this case.
III.
The issue presented on appeal is whether attorney’s fees pursuant to the
EAJA are payable to the claimant or to the claimant’s counsel. After this case
was fully briefed, this court addressed this issue in Manning v. Astrue, 510 F.3d
1246 (10th Cir. 2007), and held, based on statutory language, legislative history,
and case law, that the attorney’s fees award under the EAJA is to the prevailing
party and not to that party’s attorney. Id. at 1249-55.
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In supplemental authority, Mr. Brown acknowledges the holding in
Manning, but he contends that Manning did not decide whether counsel is
equitably entitled to the fees based on the terms of the contract. He contends that
he merely holds the fees in trust for counsel and therefore the fees are not his
personal asset.
Mr. Brown did not make this specific argument in the district court. Thus,
we need not address it. See Walker v. Mather (In re Walker), 959 F.2d 894, 896
(10th Cir. 1992) (stating that generally this court will not consider an issue not
raised in district court); cf. Manning, 510 F.3d at 1249 (declining to address lien
issue where issue was not adequately raised or briefed in district court and district
court did not rule on issue). But even if he had made this specific argument in the
district court, the result would still be the same. The district court correctly held
that Mr. Brown’s assignment of his right in the fees award to counsel does not
overcome the clear EAJA mandate that the award is to him as the prevailing
party, and the fees belong to him. Thus, the district court correctly declined to
award the fees directly to counsel.
Furthermore, the district court declined to interpret or enforce any contract
language in deciding the motion for EAJA fees. “Whether an award of attorneys’
fees under the [EAJA] ultimately redounds to the benefit of counsel depends upon
the private contractual arrangements between the attorney and the client.”
Oguachuba v. INS, 706 F.2d 93, 97 (2d Cir. 1983); see also Panola Land Buying
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Ass’n v. Clark, 844 F.2d 1506, 1511 (11th Cir. 1988) (“Historically, the client and
the lawyer make their fee arrangement, and the lawyer looks to the client for
payment of the legal fee. . . . In enacting the EAJA, Congress recognized and
maintained the attorney-client relationship as it has existed throughout our
history.”). Thus, the private contractual arrangement between Mr. Brown and his
counsel was a collateral matter the district court did not need to address when
considering the EAJA fees motion.
We AFFIRM the district court’s order dated June 22, 2007.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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