Filed: Nov. 16, 2018
Latest Update: Nov. 16, 2018
Summary: REPORT AND RECOMMENDATION GARY M. PURCELL , Magistrate Judge . Before the Court is Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. 2412. Doc. No. 22. As Defendant has not filed a response, no objection has been asserted to Plaintiff's request. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. 636(b)(1)(B). For the following reasons, it is recommended Plaintiff's App
Summary: REPORT AND RECOMMENDATION GARY M. PURCELL , Magistrate Judge . Before the Court is Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. 2412. Doc. No. 22. As Defendant has not filed a response, no objection has been asserted to Plaintiff's request. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. 636(b)(1)(B). For the following reasons, it is recommended Plaintiff's Appl..
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REPORT AND RECOMMENDATION
GARY M. PURCELL, Magistrate Judge.
Before the Court is Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412. Doc. No. 22. As Defendant has not filed a response, no objection has been asserted to Plaintiff's request. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended Plaintiff's Application be granted.
In considering the factors relevant to an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), the Court notes Defendant requested reversal and remand of this matter and finds Plaintiff is the prevailing party herein; Plaintiff's net worth does not and did not at the time this action was filed exceed $2,000,000; there are no special circumstances that would make an EAJA award unjust; and the amount of time expended, the hourly fees, and the total fees sought are reasonable.
Accordingly, Plaintiff's Application for Award of Attorney Fees Under the Equal Access to Justice Act (Doc. No. 20) should be GRANTED. Plaintiff should be awarded $5,265.40 in fees, to be payable directly to Plaintiff. See, cf., Astrue v. Ratliff, 560 U.S. 586, 589 (2010). In the event the EAJA fees awarded to Plaintiff are paid to Plaintiff's counsel and Plaintiff's counsel later recovers fees pursuant to 42 U.S.C. § 406(b), Plaintiff's counsel should be required to refund the smaller award of attorney's fees to Plaintiff.
RECOMMENDATION
In view of the foregoing findings, it is recommended Plaintiff's Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. No. 22) be GRANTED. Defendant is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before December 6th, 2018 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
IT IS SO ORDERED.
