RODRIGUEZ v. ASTRUE
ORDER accepting 23 Report and Recommendations re 2 Amended Complaint. Signed by SENIOR JUDGE MAURICE M PAUL on 10/5/2011. The decision of the Administrative Law Judge is reversed, and this matter is remanded to the Commissio ner. This Clerk is directed to enter final judgment remanding this case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings so the ALJ can further evaluate the Medical Opinion Regarding the Ability to do Work-Related Activities (Mental) dated November 25, 2008, consistent with this order and the Report and Recommendation. (kdm)
Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
LUIS A RODRIGUEZ,
CASE NO. 1:09-cv-00240-MP-GRJ
MICHAEL J ASTRUE,
This matter is before the Court on Doc. 23, the Report and Recommendation of the
Magistrate Judge, in which the Magistrate Judge recommends that this matter be remanded under
sentence four of 42 U.S.C. § 405(g). The time for filing objections has passed, and none have
been filed.. Upon consideration, the Court shall accept the Report and Recommendation and
remand the case to the Commissioner.
A remand under sentence four is considered a final judgment. Bergen v. Commissioner,
454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful
plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion
with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This
Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid
from plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1).
Bergen, 454 F.3d at
1277-78. However, plaintiff's counsel in such a case will not know the amount of benefits - and
therefore fees - until after the Commissioner awards benefits, which typically takes longer than
fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is
Page 2 of 2
warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is accepted, the decision of the
Administrative Law Judge is reversed, and this matter is remanded to the Commissioner.
This Clerk is directed to enter final judgment remanding this case to the Commissioner
under sentence four of 42 U.S.C. § 405(g) for further proceedings so the ALJ can further
evaluate the Medical Opinion Regarding the Ability to do Work-Related Activities
(Mental) dated November 25, 2008, consistent with this order and the Report and
Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42
U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The
plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel
receives notice from the Commissioner as to plaintiff’s past due benefits.
This stay relates only to attorney fee proceedings under § 406(b) of the Social Security
Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28 U.S.C. §
2412, the latter of which may be adjudicated at this time.
DONE AND ORDERED this 5th day of October, 2011
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 1:09-cv-00240-MP-GRJ
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?