E.B.E. v. Kijakazi
- Joseph Spero
- 3:21-cv-02104
- U.S. District Court · Northern District of California
- 2
In E.B.E. v. O’Malley, Judge Spero denied counsel’s section 406(b) fee motion without prejudice because notice, authentication, and benefit figures were deficient.
Stuart T. Barasch’s request for attorney’s fees from the Social Security benefits matter was denied without prejudice; E.B.E. was affected because the court found no evidence that E.B.E. actually received the motion.
What happened
In E.B.E. v. Martin O’Malley, counsel asked for $40,894.25 in fees for representing E.B.E. in this Social Security benefits case under a contingency-fee agreement.
The court found that counsel had not shown E.B.E. actually received the fee motion, had not properly authenticated supporting documents, and cited conflicting amounts for past-due benefits. The court denied the motion without prejudice, allowing counsel to file another motion that fixes these problems.
Judge Joseph C. Spero issued the order on June 14, 2024.
The detailed version
- E.B.E. v. Kijakazi · No. 3:21-cv-02104
- Joseph Spero
- June 14, 2024
Background
Stuart T. Barasch, who represented E.B.E. under a contingency-fee agreement, filed a motion seeking $40,894.25 in attorney’s fees for work performed before the court under section 406(b) of the Social Security Act, 42 U.S.C. § 406(b).
Reasons for the ruling
The court identified three defects:
- Counsel had to show that E.B.E. actually received a copy of the fee motion. Counsel stated that E.B.E. would receive it and submitted proof that the motion was mailed to E.B.E.’s last known address, but did not provide evidence that E.B.E. actually received it.
- Documents submitted to support the fee request should have been authenticated through a declaration signed under penalty of perjury. Facts supporting the motion that went beyond the exhibits also had to be included in a sworn declaration.
- The motion said that past-due benefits totaled $192,377.00, while the attached Notice of Award stated that past-due benefits totaled $145,262.45.
Disposition
The court denied the motion without prejudice to filing a new fee motion that cures these defects. The order did not decide the amount of attorney’s fees that should ultimately be awarded.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.