Aguasvivas v. Saul, Commissioner of Social Security ( 2021 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 21-CV-60020-RUIZ/STRAUSS MANUEL AGUASVIVAS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. _________________________________/ ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION THIS CAUSE comes before the Court upon United States Magistrate Judge Jared M. Strauss’s Report and Recommendation [ECF No. 28] (“Report”), filed on September 14, 2021. The Report recommends that the Court grant the Unopposed Petition for Attorney’s Fees Pursuant to the Equal Access to Justice Act (“Petition”) [ECF No. 26], filed by Plaintiff on September 10, 2021. See Report at 1. The Report properly notified the parties of their right to object to Magistrate Judge Strauss’s findings and the consequences for failing to object. Id. at 4. When a magistrate judge’s “disposition” has properly been objected to, district courts must review the disposition de novo. FED. R. CIV. P. 72(b)(3). However, when no party has timely objected, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged Congress’s intent was to only require a de novo review where objections have been properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). In any event, the “[fJailure to object to the magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (Sth Cir. 1982)). Because the Petition was unopposed, the Court presumes that no objections are forthcoming and thus has not conducted a de novo review of Magistrate Judge Strauss’s findings. Rather, the Court reviewed the Report for clear error. Finding none, it is ORDERED AND ADJUDGED as follows: 1. The Report [ECF No. 28] is AFFIRMED AND ADOPTED. 2. The Petition [ECF No. 26] is GRANTED. Plaintiff is awarded attorney’s fees in the amount of $4,389.44. DONE AND ORDERED in Fort Lauderdale, Florida, this 16th day of September, 2021. UNITED STATES DISTRICT JUDGE ce: Counsel of record Magistrate Judge Jared M. Strauss Page 2 of 2