Racette v. Social Security Administration

Filing 43

AMENDED ORDER GRANTING ATTORNEY FEES and GRANTING 42 Defendant's Stipulated Motion for Relief from Order Granting Attorney Fees by Magistrate Judge Gregory J. Fouratt. (sr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
DANIEL RACETTE,
Plaintiff,
v.

Civ. No. 16-277 GJF

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

AMENDED ORDER GRANTING ATTORNEY FEES
This matter is before the Court upon Defendant’s Stipulated Motion for Relief from
Order Granting Attorney Fees (“Motion”), filed on August 13, 2018. ECF No. 42. The Court’s
previous Order Granting Attorney Fees (“Order”) [ECF No. 41] ordered Defendant to pay
Plaintiff $12,500.00 in fees, which is incorrect. 1 Defendant asks the Court to amend its Order to
require Defendant to pay Plaintiff $12,250.00 in fees, which was the amount originally
requested. See ECF No. 40 at 1. The Court, having reviewed the Motion and the Order, and
noting the concurrence of the parties, finds the Motion to be well-taken and GRANTS it.
IT IS THEREFORE ORDERED:
1.

Defendant will pay Plaintiff a total of $12,250.00 in fees and $905.00 in costs

pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 et seq. This amount is
payable to Plaintiff, not directly to his counsel. See Astrue v. Ratliff, 560 U.S. 586, 591-93
(2010).

Plaintiff’s payment will be remitted to the office of his attorney, Francesca J.

MacDowell. Costs shall be paid from the Secretary of the Treasury’s Judgment Fund. See
28 U.S.C. § 2412(c)(1).
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The Court regrets its inadvertent error.

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2.

Defendant’s payment of this amount is without prejudice to Plaintiff’s counsel’s

right to seek attorney fees under section 406(b) of the Social Security Act, 42 U.S.C. § 406(b),
subject to the offset provisions of the EAJA.
3.

If Plaintiff’s counsel receives attorney fees under both the EAJA and 42 U.S.C. §

406(b) of the Social Security Act, Plaintiff’s counsel shall refund the smaller award to Plaintiff
pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS SO ORDERED.

_______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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