United States District Court, E.D. Michigan, Southern Division
TRACY Y. DAVENPORT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING MOTION TO AMEND/CORRECT ORDER ADOPTING
REPORT AND RECOMMENDATION, ACCEPTING AND ADOPTING AUGUST 31,
2012 REPORT AND RECOMMENDATION, AND GRANTING MOTION FOR
ATTORNEY FEES UNDER THE EAJA
Denise Page Hood, Jydge
September 28, 2015, the Court entered an Order adopting the
Magistrate Judge's April 11, 2013 Report and
Recommendation regarding attorney fees under Section
206(b)(1) of the Social Security Act, 42 U.S.C. §
406(b)(1) and rejecting the August 31, 2012 Report and
Recommendation regarding the attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d). On October 22, 2015, Plaintiff filed a Motion to
Alter/Amend Judgment pursuant to Fed.R.Civ.P. 59(e),
asserting that the motion is timely since the Court in its
September 28, 2015 Order directed the Clerk to enter
judgment. It is noted that the Court's September 28, 2015
Order did not direct the Clerk to enter judgment; it only
addressed the motions for attorney fees. The Judgment was
previously entered on June 30, 2011. (Doc. No. 20).
amendment of an order after a judgment has been entered is
governed by Rule 59(e) of the Federal Rules of Civil
Procedure. Rule 59(e) provides that any motion to alter or
amend a judgment shall be filed no later than 28 days after
entry of the judgment. Fed.R.Civ.P. 59(e). Motions to alter
or amend judgment may be granted if there is a clear error of
law, newly discovered evidence, an intervening change in
controlling law or to prevent manifest injustice.
GenCorp., Inc. v. American Int'l Underwriters,
178 F.3d 804, 834 (6th Cir. 1999). The Local Rules of the
Eastern District of Michigan provide that any motion for
reconsideration must be filed within 14 days after entry of
the judgment or order. E.D. Mich. LR 7.1(h)(1). No response
to the motion and no oral argument thereon shall be allowed
unless the Court orders otherwise. E.D. Mich. LR 7.1(h)(2).
59(e), which allows 28 days to file a motion to alter or
amend a judgment, is inapplicable since the Court's
Judgment in this case was entered on June 30, 2011.
Plaintiff's Motion to Alter/Amend filed October 22, 2015
seeks reconsideration of the Court's September 28, 2015
Order regarding attorney fees, which is not a Judgment.
Plaintiff's Motion to Alter/Amend is untimely under Local
Rule 7.1(h)(1) since it was filed beyond the 14 days after
the entry of the Court's September 28, 2015 Order
regarding attorney fees.
to prevent manifest injustice in this matter, the Court
reconsiders its September 28, 2015 Order regarding the fees
wherein the Court rejected the August 31, 2012 Report and
Recommendation, “in light of the Magistrate Judge's
recommendation in the April 11, 2013 Report and
Recommendation.” (Order, Doc. No. 34, Pg ID 636) The
April 11, 2013 Report and Recommendation, however, did not
recommend that the fees under the EAJA be denied. Instead,
the Magistrate Judge recommended that any fees awarded under
Section 206(b)(1) of the Social Security Act be offset by the
amount of EAJA fees awarded. (R&R, Doc. No. 32, Pg ID
matters seeking review of the Commissioner's actions
under the Social Security Act, fees for court representation
may be awarded under the Social Security Act, 42 U.S.C.
406(b)(1) and/or under the EAJA, 28 U.S.C. § 2412(d).
Minor v. Comm'r of Soc. Sec., 836 F.3d 878, 880
(6th Cir. 2016). The Court erred in rejecting the Magistrate
Judge's August 31, 2012 Report and Recommendation
recommending fees under the EAJA. It is noted no objections
were filed to the August 31, 2012 Report and Recommendation.
the August 31, 2012 Report and Recommendation, the Court
adopts the Magistrate Judge's findings that Plaintiff is
entitled to attorney fees under the EAJA in the amount of $9,
027.12. The Magistrate Judge reviewed the hours Plaintiff
claimed in litigating the matter and the arguments presented
by the parties. The Magistrate Judge further reviewed the
arguments raised by Plaintiff to support her position. The
Magistrate Judge properly supported the fees recommended, and
the Court finds that the amount of $9, 027.12 is reasonable
under the EAJA.
IT IS ORDERED that Plaintiff's Motion to Amend/Correct
the Court's September 28, 2015 Order (Doc. No. 35) is
FURTHER ORDERED that the April 31, 2012 Report and
Recommendation (Doc. No. 27) is ACCEPTED and ADOPTED as this
Court's findings and conclusions of law.
FURTHER ORDERED Plaintiff's Motion for Attorney Fees
under the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (Doc. No. 21) is GRANTED in the amount of $9, 027.12.
The Court previously awarded $14, 304.75 in attorney fees
under Section 206(b)(1) of the Social Security Act, 42 U.S.C.
FURTHER ORDERED that once the Commissioner determines if
Plaintiff owes the Government any pre-existing debt, any
remaining EAJA fees not deducted by the Government may be
paid directly to Plaintiff's attorney. The EAJA award
offsets the award under the Social Security Act. Any amount
remaining after the ...