Silva v. Kijakazi
- Joseph Spero
- 3:21-cv-09725
- U.S. District Court · Northern District of California
- 2
In Silva v. Kijakazi, Judge Spero denied counsel’s Social Security fee motion without prejudice because required service and authenticated supporting materials were missing.
Xavier J Silva and his counsel; the fee motion was denied without prejudice, so counsel may refile a corrected motion.
What happened
In Silva v. Kijakazi, counsel asked for $22,225 in fees for representing Xavier J Silva on a contingency-fee basis. The requested amount was 25% of the past-due disability benefits awarded after the court reversed the denial of Silva’s application.
The court found procedural defects in the request. Counsel did not provide the required statement showing that the motion had been sent to Silva, and the supporting documents were not properly authenticated. Facts beyond the exhibits also needed to be supported by a sworn declaration.
Judge Joseph C. Spero denied the fee motion without prejudice, allowing counsel to file a new motion that corrects these defects.
The detailed version
- Silva v. Kijakazi · No. 3:21-cv-09725
- Joseph Spero
- July 27, 2023
Background
Counsel for Xavier J Silva moved for an award of $22,225 in attorney fees under 42 U.S.C. § 406(b). Counsel represented Silva on a contingency-fee basis and stated that the requested amount represented 25% of the past-due benefits awarded after the court reversed the Commissioner of Social Security’s decision denying Silva’s disability-benefits application.
Reasons for the Ruling
The court held that the motion was procedurally defective for two reasons. First, counsel was required to provide a statement showing that a copy of the fee motion had been sent to Silva. The court relied on 20 C.F.R. § 404.1725(a)(7) and cases requiring proof that the claimant received notice of a fee request.
Second, the materials submitted with the fee request needed to be authenticated. The court directed that attachments be supported by a declaration signed under penalty of perjury. Any factual assertions not established by the exhibits also needed to appear in a sworn declaration, including facts concerning an alleged error by the Social Security Administration involving approval of the administrative fee agreement and failure to withhold the full 25% of Silva’s past-due benefits.
Disposition
Judge Joseph C. Spero denied the motion without prejudice to refiling a fee motion that cures the identified procedural defects. The opinion did not decide whether counsel was ultimately entitled to the requested fee amount.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.