Embernate v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Deborah Barnes on 11/14/19 DENYING 24 Motion for Attorney Fees without prejudice to renewal. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHERRELYN EMBERNATE,

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No. 2:17-cv-0040 JAM DB

Plaintiff,

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v.

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ORDER

ANDREW SAUL, Commissioner of Social
Security,1

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Defendant.

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Plaintiff brought this action seeking judicial review of a final administrative decision

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denying an application for Disability Insurance Benefits (“DIB”) under Title II of the Social

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Security Act. On February 14, 2018, the undersigned issued findings and recommendations

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recommending that plaintiff’s motion for summary judgment be granted. (ECF No. 16.) On

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April 26, 2018, the assigned District Judge adopted those findings and recommendations in full.

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(ECF No. 19.)

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Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019.
See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019).
Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. §
405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding
the Office of the Commissioner shall, in his official capacity, be the proper defendant”).
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On June 28, 2019, counsel for plaintiff filed a motion for an award of attorney’s fees

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pursuant to 42 U.S.C. § 406(b). (ECF No. 24.) The motion asserts that plaintiff and plaintiff’s

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counsel entered into a fee agreement, and that a copy of the “fee agreement is attached” to the

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filing. (ECF No. 24-1 at 1.) It is not. The motion also asserts that it is supported by “an

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itemization of the time involved in this matter.” (ECF No. 24 at 2.) Again, it is not. Neither a

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copy of the fee agreement nor an itemization of the time spent on this action is included with the

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motion.
Moreover, the motion asserts that “$6,000 was already approved by the Order of

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Administrative Law Judge who approved the fee agreement,” and that the “amount requested

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herein” of $9,064.75 “constitutes the amount of $17,500, which represents less than the full 25%

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of the past due social security disability benefits[.]” (Id. at 1.) But $6,000 + $9,064.17 =

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$15,064.75. And according to the Social Security Administration Notice of Award—a copy of

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which plaintiff’s counsel did file—plaintiff was informed that pursuant to “the fee agreement

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between you and your representative” counsel “cannot charge [plaintiff] more than $6,000 for his

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or her work.” (ECF No. 24-3 at 8.) Only $6,000 was withheld from plaintiff’s “past-due benefits

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to pay the representative.” (Id. at 3.)
Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 28, 2019 motion for

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attorney’s fees (ECF No. 24) is denied without prejudice to renewal.2

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Dated: November 14, 2019

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DLB:6
DB\orders\orders.soc sec\embernate0040.406(b).den.ord

In the event plaintiff files a renewed motion for attorney’s fees, plaintiff’s motion shall address
the issues noted in this order by including the necessary documents and briefing.
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