Opinion
No. 00-0409-BH-L
September 7, 2000
Gregory J. McKay, Esq., McKay Associates, 30 North Florida Street, Mobile, AL 36607
Patricia Nicole Beyer, Esq., U.S. Attorney's Office, 63 S. Royal St., Rm. 600, Mobile, AL 36602
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on Defendant's motion and memorandum pursuant to sentence six of § 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. § 405 (g) and 1383(c)(3) with remand of the cause to the Defendant. (Doc. 11). This motion has been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), and Local Rule 72.2(c)(3). Upon consideration of all matters presented, the undersigned recommends that the cause be remanded to the Commissioner for further proceedings.
In the motion to remand, Defendant requests that this matter be returned to the Commissioner for the purpose of locating the case file, which the Commissioner represents is lost. Defendant also stated that good cause for remand exists in this case, as a lost file is the type of circumstance anticipated by Congress for a sentence six remand. (H.R. Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980).)
Plaintiff has been contacted and does not oppose the remand.
Wherefore, upon consideration of all matters presented, it is the recommendation of the undersigned Magistrate Judge that Defendant's motion to remand under sentence six be granted and that this cause be remanded to the Commissioner for action consistent with the Defendant's motion to remand.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated September 7, 2000, is ADOPTED as the opinion of this Court.
It is ORDERED, ADJUDGED and DECREED that this case be remanded to the Social Security Administration pursuant to sentence six of § 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. § 405 (g) and 1383(c)(3) for further proceedings consistent with this Order.
JUDGMENT BY DEFAULT
A default having been entered as to the defendant, John Summerson, in the above case, on the 16th day of October, 2000, all in accordance with Rule 55(a) of the Federal Rules of Civil Procedure, and counsel for plaintiff having requested judgment against said defaulted defendant, and having filed a proper affidavit as to the amount due from the defendant to the plaintiff,
Judgment is, therefore, hereby rendered in favor of the plaintiff, the United States of America, and against the defendant, John Summerson, in the amount of $9,518.66 (principal of $9,304.87, prejudgment interest at 3.437% per annum in the amount of $213.79 through May 22, 2000, and administrative costs in the amount of $.00), plus prejudgment interest at 3.437% per annum from May 22, 2000, through the date of judgment, and post judgment interest at the legal rate of 6.241% pursuant to the provisions of Title 28, United States Code, Section 1961, until paid in full, and court costs.