Jefferies v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Maria Jefferies, No. CV-19-02381-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Plaintiff’s counsel, Kathryn Dicus, filed a Motion for Award of Attorney’s Fees 16 under 42 U.S.C. § 406 (b) (the “Motion”). (Doc. 23.) For the reasons discussed herein, the 17 Court denies the Motion without prejudice. 18 I. 19 In a previous Order, the Court reversed an Administrative Law Judge’s partial denial 20 of Plaintiff’s application for Disability Insurance Benefits and remanded the matter to the 21 Social Security Administration for a calculation of benefits. (Doc. 17.) The Court then 22 ordered a payment of attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. 23 § 2412. (Doc. 20.) Ms. Dicus now seeks attorney’s fees for her representation of Plaintiff 24 in federal court under 42 U.S.C. § 406 (b). (Doc. 23.) Although the Commissioner is not a 25 party to the contingency-fee agreement between Ms. Dicus and Plaintiff (the 26 “Agreement”), the Commissioner raises a valid concern, alleging that Ms. Dicus “did not 27 submit proof that she served the Motion and all Motion-related documents on Plaintiff.” 28 (Doc. 26 at 4); see Gisbrecht v. Barnhart, 535 U.S. 789 , 798 n.6 (2002) (noting that the 1 Commissioner “has no direct financial stake in the answer to the § 406(b) question” but 2 “plays a part in the fee determination resembling that of a trustee for the claimants”). 3 Ms. Dicus did not file a Reply. 4 II. 5 Under § 406(b), the Court may allow “a reasonable fee for [] representation, not in 6 excess of 25 percent of the . . . past-due benefits” awarded to a claimant. 42 U.S.C. 7 § 406(b)(1)(A). Because the fee is paid “out of, and not in addition to,” the claimant’s past8 due benefits, id., a motion for fees under § 406(b) must contain “[a] statement” showing 9 that counsel sent a copy of the motion to the claimant. 20 C.F.R. § 404.1725 (a)(7). When 10 evaluating applications under § 406(b), courts within the Ninth Circuit have required proof 11 of service on the plaintiff. E.g., Joshua C. v. Saul, No. SACV 15-1192-KK, 2019 WL 12 4238892, at *1 (C.D. Cal. June 27, 2019) (denying counsel’s motion for fees under 13 § 406(b) without prejudice because counsel did not serve the plaintiff with the motion); 14 Holder v. Astrue, No. CIV 05-3521-PHX-RCB, 2009 WL 1363538 , at *4 (D. Ariz. May 7, 15 2009) (refusing to consider the merits of counsel’s motion under § 406(b) until counsel 16 served the plaintiff with a renewed motion for attorney’s fees). Courts recognize that “[i]n 17 the vast majority of cases there will undoubtedly be no disagreement between” a claimant 18 and her attorney as to fees under § 406(b). See Robinson v. Sec’y of Health, Educ. & 19 Welfare, 456 F. Supp. 876, 878 (E.D. Mich. 1978). Nevertheless, “[b]asic fairness requires 20 that when an attorney claims to be entitled to money that would otherwise go to that 21 attorney’s client, the attorney should be required to notify the client of the claim.” Id. 22 Here, Ms. Dicus did not submit proof of service of the Motion on Plaintiff. 23 (Doc. 26.) The Certificate of Service only indicates electronic filing upon the 24 Commissioner’s local and regional counsel. (Doc. 23–1 at 10.) Ms. Dicus provided the 25 Court with copies of the Agreement and the Notice of Award issued to Plaintiff. (Doc. 23– 26 3 at 1–6; Doc. 23–4 at 1.) Those documents advised Plaintiff of the possibility of a fee 27 award from Plaintiff’s past-due benefits, but, to the Court’s knowledge, Plaintiff has not 28 been advised that Ms. Dicus is, in fact, requesting the Court to approve a fee payment. || Thus, in the interest of fairness, the Court will deny the Motion without prejudice. If 2|| Ms. Dicus files a renewed motion for fees under § 406(b), Ms. Dicus must submit proof || that she served Plaintiff with the renewed motion for attorney’s fees, any supporting memorandum of law, and all necessary supporting documentation, including a copy of the Agreement. See Holder, 2009 WL 1363538 at *4. 6 II. 7 Accordingly, 8 IT IS ORDERED denying the Motion (Doc. 23) without prejudice. This denial 9|| does not preclude Ms. Dicus from filing a renewed motion for attorney’s fees under || § 406(b) that complies with the requirements outlined in this Order. 11 Dated this 9th day of February, 2021. [12] 8 Wichal T. Hburde Michael T. Liburdi 15 United States District Judge [28] -3-