Craig M. Fratt v. Carolyn W. Colvin

Filing 27

Order to Show Cause Why Counsels Motion for Attorneys 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 by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 11/27/2015. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-779-UA (KK)

Title

Craig M. Fratt v. Carolyn W. Colvin

Present: The
Honorable

Date

November 13, 2015

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

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 April 21, 2014, Plaintiff Craig M. Fratt (“Plaintiff”) filed the complaint in this
action. ECF Docket No. (“Dkt.”) 1 at 1. Plaintiff alleged defendant Carolyn W. Colvin
(“Defendant”) had improperly denied Plaintiff’s applications for disability insurance
benefits and supplemental security income. Id. at 2-3.
On April 23, 2015, the Honorable Stephen J. Hillman issued a Case Management
Order (“CMO”). Dkt. 5. The CMO requires as follows:
Plaintiff’s counsel shall electronically file a motion or petition for attorney’s
fees pursuant to 42 U.S.C. § 406(b) and manually serve copies on the Office
of Regional Counsel and on the plaintiff. Plaintiff’s counsel shall state in
any notice that plaintiff may file any statement or opposition with the court
not more than fourteen (14) days after service of the motion/petition, and
that any statement or opposition filed by plaintiff shall be served on both
plaintiff’s counsel and counsel for the Commissioner (the Assistant United
States Attorney assigned to the case).
Id. at 6.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-779-UA (KK)

Date

Title

November 13, 2015

Craig M. Fratt v. Carolyn W. Colvin

On October 28, 2015, Plaintiff’s counsel, Shanny Lee (“Counsel”), filed a Motion
for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”). Dkt. 20. The Motion
seeks an award in the gross amount of $24,163.23 for representing Plaintiff. Dkt. 21 at 12. However, Counsel failed to file any document showing Plaintiff was served with the
Motion, or provided notice of his opportunity to file a statement or opposition to the
Motion. See id.; Dkt. 5.
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 she sent a copy of the
motion to the claimant. 20 C.F.R. § 404.1725(a)(7); Dkt. 5. See 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) because she failed
to provide a statement showing she sent a copy of the Motion to Plaintiff. 20 C.F.R. §
404.1725(a)(7). Counsel further failed to adhere to the CMO with respect to: (1)
manually serving copies on Plaintiff; and (2) stating in any notice that Plaintiff may file
any statement or opposition to the Motion with the Court not more than fourteen days
after service of the Motion, and that any statement or opposition filed by Plaintiff shall be
served on Counsel and counsel for Defendant. Dkt. 5 at 6. 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 he
may file a statement or opposition to the Motion with the Court not more than fourteen
days after service; and (3) file written verification of the foregoing with the Court no later
than November 27, 2015. The Court warns Counsel that failure to timely act as
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-779-UA (KK)

Date

Title

November 13, 2015

Craig M. Fratt v. Carolyn W. Colvin

directed in this Order will result in denial of the motion without prejudice.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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