(SS) Rios v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTHA RIOS, No. 1:19-cv-00523-EPG 12 Plaintiff, ORDER FOR COMMISSIONER TO FILE STATEMENT CONCERNING PLAINTIFF’S 13 v. COUNSEL’S MOTION FOR ATTORNEYS’ FEES 14 ANDREW SAUL, Commissioner of Social Security, ORDER SEALING DOCKET NUMBER 19-2 15 AND REQUIRING COUNSEL TO RE-FILE Defendant. SUCH DOCUMENT WITH PROPER 16 REDACTION 17 18 On January 15, 2021, Plaintiff’s counsel filed a motion for attorney’s fees pursuant to 42 19 U.S.C. § 406(b). (ECF No. 19). The motion did not contain a noticed date for a response, but it 20 did include a proof of service of the motion on Plaintiff and a statement to her that she had 21 fourteen days from receiving the motion to file a response to it. (Id. at 2, 26). 22 I. ORDER FOR STATEMENT FROM COMMISSIONER 23 Counsel’s motion indicates that Plaintiff was represented by separate counsel at the 24 administrative level, whom counsel anticipates will file an administrative fee petition pursuant to 25 section 406(a). (ECF No. 19 at 8, 10). Although the limits set forth in section 406(b) are separate 26 from those set forth in section 406(a), Culbertson v. Berryhill, 139 S.Ct. 517, 519 (2019) 27 (“Because § 406(b) by its terms imposes a 25% cap on fees only for representation before a court, 28 and § 406(a) has separate caps on fees for representation before the agency, we hold that the 1 statute does not impose a 25% cap on aggregate fees.”), counsel’s briefing states that “[t]he court 2 may consider the size or absence of an administrative fee in assessing reasonableness” of a fee 3 request, (ECF No. 19 at 10). 4 Therefore, the Court will order the Commissioner to file a statement concerning the fee 5 request. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002) (“We also note that the 6 Commissioner of Social Security here, as in the Ninth Circuit, has no direct financial stake in the 7 answer to the § 406(b) question; instead, she plays a part in the fee determination resembling that 8 of a trustee for the claimants.”). 9 II. SEALING ORDER 10 Under Federal Rule of Civil Procedure 5.2 and Local Rule 140, only the last four digits of 11 a Social-Security number may be visible in filings. Fed. R. Civ. P. 5.2(a) (“Unless the court 12 orders otherwise, in an electronic or paper filing with the court that contains an individual’s 13 social-security number . . . the filing may include only: (1) the last four digits of the social- 14 security number . . .”); Local Rule 140(a) (“[W]hen filing documents, counsel . . . shall omit or, 15 where reference is necessary partially redact . . . (iii) Social Security numbers: Use only the last 16 four numbers . . . .”). 17 Plaintiff’s full Social-Security number is visible in at least one document. (See ECF No. 18 19-2 at 5, 17). As such, the Court will seal that documents, and Plaintiff’s counsel shall re-file 19 such sealed document in compliance with Federal Rule of Civil Procedure 5.2(a) and Local Rule 20 140(a). Counsel shall also ensure that no other documents in the motion contain more than the 21 final four digits of Plaintiff’s Social-Security number. If such documents exist, counsel shall file a 22 motion to seal and re-file the offending documents appropriately. 23 The Court notes that counsel is employed by the Law Offices of Lawrence D. Rohlfing. 24 This is not the first time that lawyers from that office have failed to comply with redaction 25 protocols. See Anglen v. Commissioner of Social Security, No. 1:17-cv-00461-EPG (E.D. Cal.), at 26 docket entries 25, 26, 29. 27 /// 28 /// 1} I. ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Within fourteen (14) days, the Commissioner shall file a statement concerning its 4 | position, or lack thereof, on Plaintiff's counsel’s attorneys’ fees request; 5 2. The Clerk of Court is directed to SEAL ECF No. 19-2; and 6 3, Within seven days of the date of this Order, Plaintiff shall re-file such sealed 7 | documents, and such filings shall comply with Federal Rule of Civil Procedure 5.2(a) and Local 8 || Rule 140(a). ? | IT IS SO ORDERED. 10 1, | Dated: _February 1, 2021 [Je hey UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28