Hamlett v. Social Security Administration

Filing 32

ORDER by Magistrate Judge Lourdes A. Martinez GRANTING 31 Motion for Attorney Fees. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

RAYMOND L. HAMLETT,

Plaintiff,
v.

No. CIV-15-0725 RB/LAM

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
Defendant.
ORDER GRANTING UNOPPOSED MOTION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant
to the Equal Access to Justice Act, With Memorandum in Support (Doc. 31), filed on
February 20, 2017, wherein Plaintiff asks for an award of $5,668.64 in attorney fees. No
response to the motion has been filed, and the time for doing so has passed, which constitutes
consent to grant the motion. See D. N.M. LR-Civ. 7.1(b) (“The failure of a party to file and
serve a response in opposition to a motion within the time prescribed for doing so constitutes
consent to grant the motion.”). Having considered the motion, the record in this case, and
relevant law, the Court FINDS that the motion shall be GRANTED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act, With Memorandum in Support (Doc. 31) is GRANTED, and
Plaintiff is authorized to receive $5,668.64 in attorney fees for payment to Plaintiff’s attorney for
services before this Court, as permitted by the Equal Access to Justice Act, 28 U.S.C. § 2412,
and in accordance with Manning v. Astrue, 510 F.3d 1246, 1255 (10th Cir. 2007).

IT IS FURTHER ORDERED that, if Plaintiff’s counsel is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s attorney shall refund
the smaller award to Plaintiff pursuant to Astrue v. Ratliff, 560 U.S. 586, 596 n.4 (2010)
(explaining that, if a claimant’s counsel is ultimately granted attorney fees under § 406(b) out of
the claimant’s benefit award, the claimant’s attorney must refund to the claimant the amount of
the smaller fee).
IT IS SO ORDERED.

___________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

2