Cutajar v. Commissioner of Social Security
- Stewart Aaron
- 1:19-cv-05569
- U.S. District Court · Southern District of New York
- 2
In Cutajar v. Commissioner, Judge Aaron ordered a sworn amended fee affirmation by June 2, 2020, if plaintiff wanted it considered.
Micky Cutajar’s motion for attorney fees and the supporting evidence for that motion.
What happened
In Cutajar v. Commissioner of Social Security, the plaintiff asked for attorney fees under the Equal Access to Justice Act. The plaintiff supported the request with an attorney’s affirmation that was not sworn.
The Commissioner opposed the request in part, arguing that the plaintiff had not provided a sworn affidavit or declaration made under penalty of perjury. The court said it would consider only admissible evidence.
Judge Stewart D. Aaron ordered that, if the plaintiff wanted the court to consider the affirmation and exhibits, the plaintiff had to file a sworn amended affirmation or affidavit by June 2, 2020. The order did not decide whether the plaintiff would receive fees.
The detailed version
- Cutajar v. Commissioner of Social Security · No. 1:19-cv-05569
- Stewart Aaron
- May 25, 2020
Background
On March 26, 2020, Micky Cutajar filed a motion for attorney fees under the Equal Access to Justice Act (EAJA), a federal law that can allow a qualifying party to recover attorney fees from the government. Cutajar submitted an attorney’s affirmation with exhibits, but the affirmation was not sworn.
The Commissioner opposed the motion in part, arguing that Cutajar had not supported the fee request with a sworn affidavit or declaration made under penalty of perjury. The court relied on the rule that an attorney’s unsworn statements are not admissible evidence and stated that it would consider only admissible evidence when deciding the fee motion.
Order
The court ordered that, if Cutajar wanted the court to consider the contents of the attorney’s affirmation and its exhibits, Cutajar had to file an amended affirmation or affidavit sworn under penalty of perjury no later than June 2, 2020. If timely filed, the amended submission would be treated as having been filed on March 26, 2020. This order addressed the evidence supporting the fee motion; it did not award or deny attorney fees.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.