United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order re: Motion for Authorization of Attorney
Fees Under 42 U.S.C. § 406(b) [Dkt. 25]
20, 2019, Plaintiff Joshua C.'s counsel, Michelle J.
Shvarts of Disability Advocates Group
(“Counsel”), filed a second Motion for
Authorization of Attorney's Fees Pursuant to 42 U.S.C.
§ 406(b) (“Motion”). ECF Docket No.
(“Dkt.”) 25. The Motion seeks attorney's fees
in the amount of $9, 230.50 for representing Joshua C.
(“Plaintiff”) in federal court. Id. at
1-2. For the reasons set forth below, the Court denies the
Motion without prejudice.
counsel files a motion for fees 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); 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)).
Other courts evaluating applications for attorney's fees
in the context of social security disability benefits have,
therefore, required a proof of service on the plaintiff.
See Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL
5350265, at *5 (N.D. Cal. Oct. 29, 2012) (describing
plaintiff's counsel's “failure to show that
[plaintiff] received notice” of plaintiff's
counsel's motion under section 406(b) as a
“deficiency” and denying the motion partly for
this reason.). In addition, documents presented to the court
in connection with attorney's fee requests typically
should be authenticated. See Obadagbonyi v. Sky Recovery
Servs., Ltd., No. 3:10-CV-0226-LRH-RAM, 2010 WL 3636330,
at *1 (D. Nev. Sept. 10, 2010) (denying request for
attorney's fees in a FDCPA matter without prejudice
because an “unsigned, unauthenticated, and redacted
document” was insufficient to “establish the fee
rate and conditions of the contract necessary to support an
award of fees pursuant to the offer of judgment.”);
see also Fed.R.Evid. 901 (establishing general
requirements of authenticating or identifying an item of
must generally “be signed and certified as true under
penalty of perjury.” See 28 U.S.C. §
1746; Carter v. Boeing Co., No. C15-1486 RSM, 2016
WL 4595164, at *1 (W.D. Wash. Sept. 2, 2016) (declining to
consider a declaration of counsel offered in support of a
summary judgment motion “because it fails to contain
a certification under the penalty of perjury, or that it is
even true or based on personal knowledge.”). Unsworn
declarations must “at least substantially comply with
the requirements of 28 U.S.C. § 1746.”
Id. (citing Commodity Futures Trading Comm'n
v. Topworth Int'l, Ltd., 205 F.3d 1107, 1112 (9th
the Motion seeks to recover fees incurred representing
Plaintiff in federal court. Counsel previously filed a motion
for fees, dkt. 22, that was denied without prejudice because
Counsel failed to (1) prove Plaintiff was served with the
motion, and (2) properly authenticate the exhibits attached
to the motion. Dkt. 24. The instant Motion is nearly
identical to Counsel's first motion except that the
instant Motion attaches an unsworn “Declaration of
Michelle Shvarts in Support of Motion for Award of
Attorney's Fees Pursuant to 42 U.S.C. §
406(b).” Dkt. 25-1. Counsel's declaration purports
to establish service of the Motion on Plaintiff and
authenticate the attached exhibits. See Dkt. 25-2,
Ex. A; Dkt. 25-1; 20 C.F.R. § 404.1725(a)(7). However,
Counsel's declaration setting forth this information is
not sworn under penalty of perjury pursuant to 28 U.S.C.
§ 1746. The unsworn declaration thus fails to cure the
deficiencies previously identified. Hence, the instant Motion
again fails to (1) prove Plaintiff was served with the
Motion, or (2) properly authenticate the exhibits attached to
Counsel's Motion is DENIED without prejudice.
IS SO ORDERED.
 Partially redacted in compliance with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and
Case Management of the Judicial Conference of the United
 The Court substitutes Andrew Saul,
Commissioner of Social Security as Defendant in this action.
 Additionally, Counsel states she
attaches “the Notice of Award and confirmation of
withholding” as Exhibit B to the Motion. Dkt. 25 at 3.
However, it appears Exhibit B attached to the Motion is a May
18, 2019 letter from the SSA addressing an overpayment to
Plaintiff, not an award letter. Id. at 13. Thus,
even if Exhibit B had been properly authenticated, it does
not constitute evidence of the total amount of benefits
awarded to ...