Opinion
Case Number 08-12820-BC.
August 14, 2009
ORDER GRANTING PLAINTIFF'S APPLICATION FOR ATTORNEY'S FEES AND COSTS
Plaintiff Jeffery S. Warner filed a complaint in the United States District Court for the Eastern District of Michigan, Southern Division, on July 2, 2008, challenging the denial of his application for disability benefits by Defendant Commissioner of Social Security. Dkt. # 1. The complaint was referred to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1) [Dkt. # 3], and on January 6, 2009 Plaintiff filed a motion for summary judgment. Dkt. # 11. On April 30, 2009, pursuant to both parties' stipulation, this Court entered an order under sentence four of 42 U.S.C. § 405(g) remanding the case for further administrative proceedings. Dkt. # 20.
Now before the Court is Plaintiff's July 28, 2009 motion for attorney fees filed pursuant to 28 U.S.C. § 2412(a) (d). Under the statute, the Court "shall" award attorney fees and costs to the "prevailing party" in a civil action against the United States unless the government's position was not "substantially justified" or other "special circumstances" would make the award of fees "unjust." Id. Here, Plaintiff is the "prevailing party" and his application for attorney fees is timely because the Court's order remanding the case for further administrative review constitutes a final judgment and the time to appeal that order has expired. See Schalala v. Schaefer, 509 U.S. 292, 297 300-301 (1993). Defendant indicated in its response that it did not object to the award of attorney fees.
Accordingly, it is ORDERED that Plaintiff's application for attorney's fees [Dkt. # 21] is GRANTED. Plaintiff is awarded $3,427.40 in attorney fees and costs to be paid in accordance with the procedures set forth in 28 U.S.C. §§ 2412(c)(1) 2414. It is further ORDERED that the hearing scheduled for September 9, 2009 is CANCELLED.