Opinion
Case No. 3:11-cv-01029-AC
06-18-2013
MADELINE NEWTON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING FINDINGS AND
RECOMMENDATION
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in this case on May 23, 2013. Dkt. 27. Judge Acosta recommended that Plaintiff's motion for attorney fees be granted. No party has filed objections.
Under the Federal Magistrates Act ("Act"), the court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report[.]"); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise").
Although review is not required in the absence of objections, the Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that "[w]hen no timely objection is filed," the court review the magistrate's findings and recommendations for "clear error on the face of the record."
No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Acosta's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acosta's Findings and Recommendation, Dkt. 27. Plaintiff's motion for attorney fees, Dkt. 22, is GRANTED. Plaintiff's attorney, Merrill Schneider, is awarded $13,838.00 under 42 U.S.C. § 406(b). Schneider shall refund to Plaintiff the $3,948.89 in EAJA fees previously awarded in this case.
IT IS SO ORDERED.
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Michael H. Simon
United States District Judge