Silva v. Kijakazi

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 XAVIER J SILVA, 7 Case No. 21-cv-09725-JCS Plaintiff, 8 v. ORDER DENYING FEE MOTION 9 WITHOUT PREJUDICE KILOLO KIJAKAZI, 10 Defendant. 11

12 13 Plaintiff’s counsel brings a Motion for an Award of Attorney Fees under 42 U.S.C. § 14 406(b) (“Motion”). In the Motion, he asks the Court to award $22,225.00 in attorneys’ fees 15 for representation of Plaintiff on a contingency-fee basis in this action. This is 25% of the 16 past-due benefits awarded to Plaintiff on remand after the Court reversed the decision of the 17 Commissioner of Social Security denying his application for disability benefits. The Court 18 DENIES the Motion without prejudice because it is procedurally defective. 19 First, where counsel files a motion for fees in an action for social security benefits, counsel 20 must provide a statement showing that a copy of the motion has been sent to the plaintiff to the 21 claimant. 20 C.F.R. § 404.1725(a)(7); Holder v. Astrue, No. CIV.05-3521-PHX (RCB), 2009 WL 22 1363538, at *3 (D. Ariz. May 7, 2009) (“There is no question but that, when making section 23 406(b) applications, as here, attorneys are required to give notice to their clients as to the existence 24 of such application.” (internal quotation marks omitted)). Courts evaluating applications for 25 attorneys’ fees in the context of social security disability benefits have, therefore, required a proof 26 of service on the plaintiff. See Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL 5350265, at *5 27 (N.D. Cal. Oct. 29, 2012) (describing plaintiff’s counsel’s “failure to show that [plaintiff] received 1 motion partly for this reason.). 2 Second, documents presented to the court in connection with attorneys’ fee requests should 3 be authenticated. See Obadagbonyi v. Sky Recovery Servs., Ltd., No. 3:10-CV0226-LRH-RAM, 4 |} 2010 WL 3636330, at *1 (D. Nev. Sept. 10, 2010) (denying request for attorney’s fees in a 5 || FDCPA matter without prejudice because an “unsigned, unauthenticated, and redacted document” 6 || was insufficient to “establish the fee rate and conditions of the contract necessary to support an 7 award of fees pursuant to the offer of judgment.”); see also Fed. R. Evid. 901 (establishing general 8 || requirements of authenticating or identifying an item of evidence). Thus, the attachments 9 submitted in connection with the Motion should be authenticated through a declaration signed 10 || under penalty of perjury. Any facts upon which the Motion relies should also be contained in a 11 sworn declaration to the extent they go beyond the facts established by the exhibits. This includes 12 any facts related to the error counsel contends has been made by the Social Security 5 13 Administration in connection with its approval of the administrative level fee agreement and 14 || failure to withhold the full 25% of the past-due benefits awarded to Plaintiff. 3 15 Therefore, the Motion is DENIED without prejudice to refiling a motion for attorneys’ fees 16 || that cures these procedural defects. IT IS SO ORDERED. || Datea: July 27, 2023 19 i LZ € LEE J PH C. SPERO 20 nited States Magistrate Judge 21 22 23 24 25 26 27 28