Montgomery v. Social Security Administration Commissioner

Filing 22

ORDER denying 20 Motion for Attorney Fees. Signed by Honorable Erin L. Setser on June 17, 2010. (cnn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION

TIMIKA MONTGOMERY o/b/o K.M. V. MICHAEL J. ASTRUE, Commissioner of Social Security NO. 4:09-4001

PLAINTIFF

DEFENDANT

ORDER Before the Court is Plaintiff's Application and Affidavit for Attorney's Fees under 28 U.S.C. § 2412 The Equal Access to Justice Act.1 (Doc. #19). The Defendant has responded, objecting to such an award because Plaintiff is not a prevailing party. (Doc. #21). Plaintiff has not filed a reply to Defendant's response. On February 18, 2010, the undersigned entered a Memorandum Opinion and Judgment in this matter, reversing the decision of the Administrative Law Judge (ALJ) and remanding the matter to the Commissioner for consideration of new and material evidence, pursuant to sentence six of 42 U.S.C. § 405(g). (Doc. # 17, 18). In Melkonyan v. Sullivan, 501 U.S. 89 (1991), the United States Supreme Court held that in sentence six cases, the EAJA filing period "does not begin to run until after the [post-remand] proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs." Id. at 102.

1

The Court notes that no brief in support of the motion was filed by Plaintiff's counsel, as required by Local Rule 7.2.

AO72A (Rev. 8/82)

Since the administrative proceedings in this matter are still pending, the undersigned finds that the EAJA motion for fees filed by Plaintiff's counsel is premature and therefore denied as premature and dismissed. ENTERED this 17th day of June, 2010.

/s/ Erin L. Setser HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE

AO72A (Rev. 8/82)