UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 23, 2009
MILDRED CARTER, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE: FINDINGS AND RECOMMENDATIONS RE: PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
(DOCS. 35, 43)
Plaintiff is represented by counsel and sought judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying an application for benefits. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 72-302(c)(15).
Pending before the Court is Plaintiffs motion for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), filed on December 19, 2008. On February 26, 2009, the Magistrate Judge filed findings and recommendations concerning Plaintiff's motion that were electronically served and that gave notice of the right to file objections. The Magistrate Judge recommended granting Plaintiff's motion in part, awarding a total of $7,637.73 to be paid directly to Plaintiff, the prevailing party.
On March 5, 2009, Plaintiff filed timely objections in which Plaintiff noted and documented the existence of an assignment by Plaintiff to Plaintiff's counsel of the right to attorney's fees in the circumstances of this case. Defendant had stated in a footnote to its opposition to the motion that it would waive objection to payment of the EAJA attorney's fees if proof of an assignment were made. (Doc. 40, p. 5, n. 3.) On March 6, 2009, the Court issued a minute order stating that it required a response to Plaintiff's objections pursuant to Local Rule 72-304(d), which provides for objections to be filed and served within ten court days after service of the objections. Although ten court days have now passed since the issuance of the Court's minute order, and further, although Defendant has designated counsel for service, Defendant has not responded to the Court's minute order. The Court interprets Defendant's inaction as acquiescence in Plaintiff's counsel's representation, supported by documentation, of a valid assignment to counsel of Plaintiff's right to receive the fees, and thus a waiver of any objection to payment of the fees directly to Plaintiff's counsel.
Plaintiff has filed timely objections to the findings and recommendations; the undersigned has considered the objections and has determined the findings and recommendations may be modified to reflect a direction to make the payment to Plaintiff's counsel; otherwise, there is no need to modify the findings and recommendations based on the points raised in the objections.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendation filed February 26, 2009, are ADOPTED IN PART; and
2. Plaintiff's motion for attorney's fees pursuant to the EAJA IS GRANTED IN PART; AND
3) An award of attorney's fees in the amount of $7,637.73 BE MADE directly to Plaintiff's counsel, Harvey P. Sackett, of Sackett and Associates.
IT IS SO ORDERED.
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