M.F. v. Kijakazi

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7

9 M. F., 10 Plaintiff, No. 20-cv-08742-WHA

11 v. ORDER DENYING MOTION TO ALTER JUDGMENT 12 KILOLO KIJAKAZI, 13 Defendant.

14 INTRODUCTION 15 In this social security action, a prior order denied an award of attorney’s fees to be taken 16 out of an award to the claimant under 42 U.S.C. § 406(b). The attorney now moves to vacate 17 that order under Rule 59(e). The claimant, now proceeding pro se, opposes the motion. For 18 the reasons stated herein, the attorney’s motion is DENIED. 19 STATEMENT 20 A previous order provides a detailed recapitulation of this action’s factual history (Dkt. 21 No. 72). In short, movant Attorney Steven Bruce (practicing under the name People with 22 Disabilities Foundation) entered into two fee agreements with his now former client, M.F.. 23 First, M.F. signed a retainer agreement in 2020 in which she agreed to assign any court- 24 awarded fees under the Equal Access to Justice Act (EAJA) to Attorney Bruce. Second, M.F. 25 signed an agreement in 2022 in which M.F. agreed to Attorney Bruce representing her through 26 the Appeals Council and for attorney’s fees pursuant to 42 U.S.C. § 406(a)(2)(A). However, 27 1 the second agreement failed to advise that any such fees would be paid by the claimant herself 2 (from any award). 3 In the district court, the claimant originally won a remand, and her attorney was awarded 4 EAJA fees. On remand, claimant won before the agency. At Attorney Bruce’s request, 5 claimant paid him $12,987 in November 2023 out of her own pocket. 6 In January 2024, Attorney Bruce moved for even more attorney’s fees in the district court 7 pursuant to 42 U.S.C. § 406(b). After requesting and reviewing copies of both aforementioned 8 fee agreements, a previous order found that neither agreement had put M.F. on notice that she 9 would need to pay Attorney Bruce attorney’s fees pursuant to Section 406(b) out of her own 10 past-due benefits (Dkt. No. 72). Therefore, the motion was denied. On remand, M.F., it 11 should be said, vigorously opposed the motion on the further ground that she had done most of 12 the work. 13 Since then, Attorney Bruce moved to withdraw from representing M.F. which was 14 granted. M.F. now proceeds pro se. Attorney Bruce has filed the instant motion under Rule 15 59(e) to vacate the Court’s last order denying him Section 406(b) fees. This order follows full 16 briefing and finds movant’s motion suitable for disposition on the papers under Civil Local 17 Rule 7-1(b). 18 ANALYSIS 19 Under Rule 59(e) it is appropriate to alter or amend a judgment: “(1) if such motion is 20 necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such 21 motion is necessary to present newly discovered or previously unavailable evidence; (3) if such 22 motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 23 intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th 24 Cir. 2011) (citation omitted). This is “an extraordinary remedy which should be used 25 sparingly.” Ibid. Rule 59(e) “may not be used to relitigate old matters, or to raise arguments 26 or present evidence that could have been raised prior to the entry of judgment.” Exxon 27 Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). 1 Attorney Bruce filed the instant motion to vacate this Court’s last order which denied him 2 fees under Section 406(b). Attorney Bruce makes three arguments, and though this order finds 3 none of them persuasive, this order shall briefly address each of them. 4 First, Attorney Bruce argues that “there is no reason to attach a fee agreement or fee 5 petition” when moving for fees under Section 406(b) (Br. at 3). This order disagrees. The 6 Supreme Court has clarified that when district courts review requests for a contingent fee under 7 Section 406(b), they must begin “by first looking to the contingent-fee agreement, then testing 8 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (citing 9 Gisbrecht v. Barnhart, 35 U.S. 789, 808 (2002)). Contrary to Attorney Bruce’s contention, he 10 was indeed required to produce a valid contingency-fee agreement which demonstrated that he 11 and M.F. agreed to attorney’s fees pursuant to Section 406(b) in the form of 25% of her past 12 due benefits. Yet, he has failed to do so. This was and is the central problem with movant’s 13 request for Section 406(b) fees; he still has not shown a valid contingency-fee agreement 14 wherein he and M.F. knowingly agreed to attorney’s fees in the amount of 25% of past due 15 benefits pursuant to Section 406(b). As noted by M.F. in her opposition, Section 406(b) does 16 not “obviate[] the need for a fee agreement nor [does it] provide[] for any automatic payment 17 of fees” (Opp. at 3). 18 Second, Attorney Bruce includes several pages of emails between Attorney Bruce and 19 M.F., ostensibly to demonstrate that he did in fact provide notice of his motion for Section 20 406(b) fees. None of these emails, however, demonstrates that he informed M.F. about his 21 forthcoming motion for fees which would have been taken out of her past-due benefits. On the 22 contrary, the emails provided by both Attorney Bruce and M.F. indicate that the earliest 23 correspondences regarding his request for Section 406(b) fees was the end of February 2024, 24 nearly a month after filing his motion. 25 Third, Attorney Bruce attributes fault (or at least, some confusion) to three delayed 26 notices of awards sent by the Social Security Administration informing both him and M.F. of 27 her past-due benefits (Br. at 5). More specifically, he argues that he “was not responsible for 1 notices of claimant’s past-due benefits instead of one, the notices did nothing about the central 2 problem of Attorney Bruce’s motion: he never had a proper agreement by which the client 3 knew she would be asked to give up part of her award to counsel (in addition to his EAJA fees 4 and the $12,987). Therefore, this order finds that Attorney Bruce’s arguments fail under Rule 5 59(e). 6 On a final note, Attorney Bruce requested to reargue his motion. That request is DENIED. 7 The Court gave Attorney Bruce several opportunities to provide clarification prior to and 8 during the motion’s hearing on April 30, 2024. 9 10 CONCLUSION 11 Attorney Bruce’s motion is DENIED. 12 13 IT IS SO ORDERED. 14 15 Dated: July 24, 2024. 16 17 WILLIAM ALSUP 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27