Foster v. Barnhart

Filing 26

ORDERED that: (1) the 24 Recommendation of the Magistrate Judge is ADOPTED with a modification to reflect that the EAJA filing period expired on 4/10/2007 rather than 4/10/2008; and (2) The Petition for Approval of Attorneys Fees is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 2/24/2009. (cb, )

Download PDF
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION M A R S H A L L H. FOSTER, JR., P L A IN T IF F , v. M IC H A E L ASTRUE, C o m m is s io n e r of Social Security, DEFEND AN T. ) ) ) ) ) ) ) ) ) ) C A S E NO. 3:05cv776-MEF ORDER T h is cause is before the Court on the Petition for Approval of Attorneys Fees (Doc. # 20 filed on November 24, 2008 by counsel for Plaintiff Marshall H. Foster, Jr. By this m o tio n , Plaintiff seeks an award of attorney's fees pursuant to the Equal Access to Justice A c t ("EAJA"), 28 U.S.C. 2412. Defendant opposed this motion arguing that the request w a s made outside the allowable time frame set forth in the EAJA. Specifically, the D e f en d a n t noted that the judgment became final in this case on March 11, 2007, and the E A JA requires the fee petition to be filed thirty days after that date. Although the Court i n v i te d Plaintiff to respond to this argument, he elected to remain silent. On January 14, 2 0 0 9 , the Chief United States Magistrate Judge filed a Recommendation (Doc. # 24) in this c a s e in which she recommended that the petition for attorney's fees be denied as untimely. P la in tif f made no effort to submit any objection to this Recommendation. The Defendant f ile d a notice pointing out a typographical error in the Recommendation which does not alter its basic legal soundness. Upon an independent review of the file in this case and upon c o n sid e ra tio n of the Recommendation of the Magistrate Judge, it is the O R D E R , JUDGMENT and DECREE of the Court that: 1 . The Recommendation of the Magistrate Judge (Doc. # 24) is ADOPTED with a m o d if ic a tio n to reflect that the EAJA filing period expired on April 10, 2007 rather than A p ril 10, 2008. 2 . The Petition for Approval of Attorneys Fees (Doc. # 20) filed on November 24, 2 0 0 8 by counsel for Plaintiff Marshall H. Foster, Jr. is DENIED. D O N E this the 24th day of February, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?