Rogers v. Social Security Administration Commissioner
ORDER ADOPTING 18 REPORT AND RECOMMENDATIONS, further granting 14 Motion to Remand. Signed by Honorable P. K. Holmes, III on February 3, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CAROLYN W. COLVIN, Commissioner
Social Security Administration
The Court has received an amended report and recommendation (Doc. 18) from United
States Magistrate Judge Mark E. Ford. The original report and recommendation (Doc. 15) was
filed on January 26, 2017. Plaintiff filed a response (Doc. 16) in objection and Defendant filed a
reply (Doc. 17). Upon de novo review of the original report and recommendation in light of
Plaintiff’s objections, the Court finds that the objections offer neither law nor fact requiring
departure from the Magistrate’s findings and recommendations. Both the original and amended
report and recommendation recommend granting Defendant’s unopposed motion to remand for
further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff
objected that the original report and recommendation should not result in a waiver of attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Defendant replied that
this would not occur because EAJA gives Plaintiff the right to seek EAJA fees after remand. 1 The
amended report and recommendation was filed to clarify that Plaintiff can still seek EAJA fees
and costs following the entry of judgment.
Because the amendment does not change the
substantive findings and recommendations, but only correctly states the law to alleviate Plaintiff’s
An application for EAJA fees may be filed up to 30 days after the judgment becomes “not
appealable” (i.e., 30 days after the 60-day time period for appeal has ended). See Shalala v.
Schaefer, 509 U.S. 292, 296 (1993); 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).
concerns, the Court need not wait for additional objections to be filed to the amended report and
recommendation before ruling. Upon due consideration, therefore, the Court finds that the report
and recommendation and the amended report and recommendation are proper, contain no clear
error, and should be and hereby are ADOPTED IN THEIR ENTIRETY.
IT IS THEREFORE ORDERED that Defendant’s unopposed motion to remand (Doc. 14)
is GRANTED, and this case is remanded to the Commissioner for further consideration pursuant
to sentence four of 42 U.S.C. § 405(g). Judgment will be entered separately.
IT IS SO ORDERED this 3rd day of February, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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?