Krieg v. Commissioner Social Security Administration

Filing 30

ORDER - Adopting Findings and Recommendation 25 . Signed on 5/7/12 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DIANA KRIEG,
Plaintiff,
Case No. 3:10-cv-950-HU
v.
OPINION AND ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Tim D. Wilborn
Wilborn Law Office, P.C.
P.O. Box 2768
Oregon City, Oregon 97045
Attorney for Plaintiff
Amanda Marshall
United States Attorney
Adrian L. Brown
Assistant United States Attorney
U.S. Attorney's Office
District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
David Morado
Regional Chief Counsel
Seattle, Region X
Benjamin J. Groebner
Special Assistant United States Attorney
Social Security Administration
Office of General Counsel
701 Fifth Avenue, Suite 2900

Opinion and Order, Page 1

MIS 221A
Seattle, Washington 98104
Attorneys for Defendant
SIMON, District Judge.
On April 4, 2012, Magistrate Judge Dennis Hubel filed Findings and a Recommendation
("F & R") that Plaintiffs motion for attorney's fees under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412 be granted and that Plaintiff be awarded fees in the amount of
$4,558.78 (doc. # 25). No objections to the F & R have been filed.
Under the Federal Magistrates Act, the court may "accept, reject or modify, in whole or in
part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and recommendations, "the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard
of review. In such cases, "[t]here is no indication that Congress, in enacting [the Magistrates Act]
intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474 U.S.
140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9 th Cir. 2003) (en
bane) (court must review de novo magistrate's findings and recommendations if objection is
made, "but not otherwise").
Although in the absence of objections no review is required, the Magistrates Act "does
not preclude further review by the district judge[] sua sponte . .. under a de novo or any other
standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Rule 72(b) ofthe
Federal Rules of Civil Procedure recommend that "[w]hen no timely objection is filed," the court

Opinion and Order, Page 2

review the magistrate's findings and recommendations for "clear error on the face of the record."
No objections having been made, the court follows the recommendation of the Advisory
Committee and reviews the F & R for clear error on the face of the record. No such error is
apparent.
Accordingly, the court ADOPTS Judge Bubel's F & R (doc. # 25). Plaintiff is awarded
fees under the EAJA in the amount of $4,558.78.
IT IS SO ORDERED.
"1..tt--

DATED this

7

L
day of----=---=-- l _ ' 2012.
/I.. #.--l

Michael H. Simon
United States District Judge

Opinion and Order, Page 3