Opinion
CASE NO. 1:10-cv-00046-MP-GRJ.
February 2, 2011
ORDER
This matter is before the Court on Doc. 18, Report and Recommendation of the Magistrate Judge, recommending that Doc. 17, the Defendant's Motion to Remand, be granted. The time for filing objections has passed, and none have been filed. The Court agrees that the case should be reversed and remanded to the Commissioner for the purposes described in the Report and Recommendation. Accordingly, the Report and Recommendation will be adopted, the decision to deny benefits reversed, and the case remanded to the Commissioner.
With regard to attorney's fees, absent a court order stating otherwise, a successful Plaintiff's counsel has fourteen days after final judgment 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 v. Commissioner, 454 F.3d 1273, 1277-78 (11th Cir. 2006). 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 warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge (Doc. 18) is adopted, and the motion to remand, Doc. 17, is granted. The Clerk is directed to enter judgment reversing the decision to deny benefits and remanding the case to the Commissioner for further proceedings consistent with the instructions contained in the Report and Recommendation.
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 Defendant 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 2nd day of February, 2011