Escolar v. Kijakazi

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 E.B.E., 7 Case No. 21-cv-02104-JCS Plaintiff, 8 v. ORDER DENYING MOTION FOR 9 ATTORNEY’S FEES UNDER SECTION MARTIN O'MALLEY, 406(B) WITHOUT PREJUDICE 10 Defendant. Re: Dkt. No. 31 11

12 13 Stuart T. Barasch (“counsel”), who represented E.B.E. in this matter under a contingency 14 fee agreement, brings a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”), 15 seeking an award of $40,894.25 in attorney fees for work before this Court. The Motion is 16 DENIED without prejudice.1 17 First, where counsel files a motion for fees in an action for social security benefits, counsel 18 must establish that the claimant actually received a copy of the motion. 20 C.F.R. § 19 404.1725(a)(7); Holder v. Astrue, No. CIV.05-3521-PHX (RCB), 2009 WL 1363538, at *3 (D. 20 Ariz. May 7, 2009) (“There is no question but that, when making section 406(b) applications, as 21 here, attorneys are required to give notice to their clients as to the existence of such application.” 22 (internal quotation marks omitted)); Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL 5350265, at 23 *5 (N.D. Cal. Oct. 29, 2012) (describing plaintiff’s counsel’s “failure to show that [plaintiff] 24 received notice” of plaintiff’s counsel’s motion under section 406(b) as a “deficiency” and 25 denying the motion partly for this reason.). Counsel states in the motion that “Plaintiff will receive 26 a copy of Petitioner’s motion and memorandum regarding the request for attorney’s fees under 27 1 Social Security Act § 206(b)(1) and 42 U.S.C. § 406(b)(1).” Dkt. no. 31-1 (Motion) □□ 12. He also 2 || provides a proof of service stating that a copy of the motion was mailed to the claimant’s last 3 known address. Dkt. no. 31-8. However, Plaintiff does not provide any evidence that the motion 4 || was actually received by the claimant. 5 Second, documents presented to the court in connection with attorneys’ fee requests should 6 be authenticated. See Obadagbonyi v. Sky Recovery Servs., Ltd., No. 3:10-CV0226-LRH-RAM, 7 |} 2010 WL 3636330, at *1 (D. Nev. Sept. 10, 2010) (denying request for attorney’s fees ina 8 || FDCPA matter without prejudice because an “unsigned, unauthenticated, and redacted document” 9 || was insufficient to “establish the fee rate and conditions of the contract necessary to support an 10 || award of fees pursuant to the offer of judgment.”); see also Fed. R. Evid. 901 (establishing general 11 requirements of authenticating or identifying an item of evidence). Thus, the attachments 12 || submitted in connection with the motion should be authenticated through a declaration signed 5 13 under penalty of perjury. Any facts upon which the Motion relies should also be contained in a 14 sworn declaration to the extent they go beyond the facts established by the exhibits. 3 15 Third, the motion states that past due benefits were awarded in the amount of $192,377.00 16 and the requested fees were calculated on the basis of that amount, dkt. no. 31-1 (motion) □ 4, but 3 17 the Notice of Award attached to the motion states that past due benefits were awarded in the |) amount of $145,262.45. Dkt. no. 31-3. 19 Therefore, the Motion is DENIED without prejudice to refiling a motion for attorneys’ fees 20 || that cures these defects. 21 IT IS SO ORDERED. 22 23 Dated: June 14, 2024 24 i LZ € LEE J PH C. SPERO 25 nited States Magistrate Judge 26 27 28