Opinion

Annette Amy Salsman v. Nancy A. Berryhill

Court
District Court, C.D. California
Filed
Mar 3, 2022
Cited by
0 cases

The opinion

Case 2:18-cv-08369-KK Document 30 Filed 03/03/22 Page 1 of 2 Page ID #:1560

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 18-8369-KK Date: March 3, 2022

Title: Annette S.1 v. Kilolo Kijakazi, Acting Commissioner of Social Security2

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DONNISHA BROWN Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: (In Chambers) Order to Show Cause Why Counsel’s Motion for Attorney’s

Fees Pursuant to 42 U.S.C. § 406(b) Should Not Be Denied for Failure to

Comply with 20 C.F.R. § 404.1725(a)(7) and Court Orders

I.

BACKGROUND

On September 27, 2018, Plaintiff Annette S. (“Plaintiff”) filed the Complaint in this action.

ECF Docket No. (“Dkt.”) 1. Plaintiff alleged the Commissioner of the Social Security

Administration (“Defendant”) improperly denied Plaintiff’s application for Title II Disability

Insurance Benefits. Id.

On October 1, 2018, the Court issued a Case Management Order (“CMO”). Dkt. 8. For

“[a]ny motion or petition for attorney fees pursuant to Title 42 of the United States Code, section

406(b),” the CMO requires:

Plaintiff’s counsel shall electronically file a motion or petition for attorney fees

pursuant to Section 406(b) and manually serve hard copies on the Office of Regional

Counsel and on plaintiff by ground mail. Plaintiff’s counsel shall state in any notice

1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the

recommendation of the Committee on Court Administration and Case Management of the Judicial

Conference of the United States.

2 Kilolo Kijakazi, Acting Commissioner of Social Security, is substituted as the Defendant pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure.

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Case 2:18-cv-08369-KK Document 30 Filed 03/03/22 Page 2 of 2 Page ID #:1561

that plaintiff may file any statement or opposition with the Court not more than

fourteen (14) days after service of the motion or petition, and that any statement or

opposition filed by plaintiff shall be served on both plaintiff’s counsel and the

SAUSA or AUSA.

Id. at 10 (emphasis in original).

On August 20, 2019, the Court found Defendant erred in denying Plaintiff’s application and

entered Judgment reversing and remanding the case for further administrative proceedings. Dkts.

24, 25.

On February 10, 2022, Plaintiff’s counsel, Patricia L. McCabe (“Counsel”), filed a Motion for

Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”). Dkt. 28. The Motion seeks an award in

the gross amount of $23,059.88 for representing Plaintiff. Id. at 3-4.

II.

DISCUSSION

Where counsel files a motion for fees for representing a claimant in an action for social

security benefits, counsel must provide a statement showing notice has been provided to the

claimant. 20 C.F.R. § 404.1725(a)(7); dkt. 8; see also Holder v. Astrue, No. CIV.05-3521-PHX

(RCB), 2009 WL 1363538, at *3 (D. Ariz. May 7, 2009) (“There is no question but that, when

making section 406(b) applications, as here, attorneys are required to give notice to their clients as to

the existence of such application.” (internal quotation marks omitted)).

Here, Counsel failed to comply with 20 C.F.R. § 404.1725(a)(7) and the CMO because she

failed to file a document establishing when and in what manner Plaintiff was served with the

Motion. See 20 C.F.R. § 404.1725(a)(7); dkt. 8 at 10. Counsel further failed to adhere to the CMO

because she failed to provide notice that Plaintiff may file any statement or opposition with the

Court not more than fourteen (14) days after service of the motion. See dkt. 8 at 10. Thus, Counsel

must show cause why the Motion should not be denied based upon her failure to comply with 20

C.F.R. § 404.1725(a)(7) and the CMO.

III.

ORDER

If Counsel desires to pursue the Motion, Counsel must: (1) serve copies of the Motion and

Motion-related documents on Plaintiff; (2) provide notice to Plaintiff that she may file a statement

or opposition to the Motion with the Court not more than fourteen (14) days after service; and (3)

file written verification of the foregoing with the Court no later than March 10, 2022. The Court

warns Counsel that failure to timely act as directed in this Order will result in denial of the

Motion without prejudice.

Page 2 of 2 CIVIL MINUTES—GENERAL Initials of Deputy Clerk dsb

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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