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, )

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

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