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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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.
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