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Monica Vonberckefeldt v. Michael J. Astrue
February 10, 2011
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PARTIES TO SUBMIT ADDITIONAL BRIEFING
On December 8, 2010, Plaintiff Monica VonBerckefeldt submitted an application for for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Defendant filed an opposition on January 28, 2011. Plaintiff has not yet filed a reply.
The instant fee application raises an additional question not addressed by the parties. May Plaintiff recover attorney fees for work performed by Mr. Wilborn, who is not a member of either the California Bar or the Bar of this Court? *fn1
Local Rule 180(b) states, "(e)xcept as otherwise provided herein, only members of the Bar of this Court shall practice in this Court." It is undisputed that Mr. Wilborn is not a member of the California Bar or the Bar of this Court. Therefore, the only exception which may apply is Local Rule 180(b)(2), which governs admission pro hac vice . It does not appear that Mr. Wilborn is admitted, or has applied to be admitted, pro hac vice . Even if he were admitted pro hac vice, however, it is not clear that admission pro hac vice is appropriate to permit an attorney, who is not a member of this Court's Bar, to practice regularly in unrelated cases before this Court.
The Ninth Circuit Court of Appeals addressed this question in
Winterrowd v. Am. Gen. Annuity Ins. Co. , 556 F.3d 815
(9th Cir. 2009). There, the Ninth Circuit held that an Oregon attorney
who was not admitted to the California State Bar or admitted to
practice pro hac vice in the Central District of
California, could recover attorney fees for work in an action
prosecuted before the Central District of California. The attorney did
not physically appear before the Central District, did not sign
pleadings, had minimal contact with clients and no contact with
opposing counsel, and was supervised by an attorney who was admitted
to the California State Bar and who remained solely responsible to the
clients. Winterrowd , 556 F.3d at 825. The recovery
of fees was premised, though, on a finding that the non-admitted
attorney "would have certainly been permitted to appear pro
hac vice had he or she applied. Id. at
Winterrowd appears to be distinguishable from the
instant arrangement in at least two significant respects, however.
First, Winterrowd involved work in a single case.
Here, the undersigned has recently reviewed at least four
applications, including this application, for EAJA fees in cases where
Mr. Wilborn performed legal work before this Court. *fn2
In each of these cases, the Court was unaware of his
involvement in the case until the fee application was filed because he
did not enter an appearance, his name was not on the caption and he
did not sign any of the pleadings or filings. In the Eastern District,
an attorney is not eligible to practice pro hac vice
if the attorney (i) resides in California; (ii) is regularly
employed in California; or (iii) is regularly engaged in professional
activities in California. Local Rule 180(b)(2). Mr. Wilborn's
continued legal work before this Court may make him ineligible for
pro hac vice admission, and thus the
collection of EAJA fees. See Winterrowd , 556
F.3d at 823 ("We do note, however, that if the record indicated a
reason why Wheatley, Sr., would not have been
admitted pro hac vice . . .we could end our inquiry
here and refuse to allow the Winterrowd plaintiffs to collect fees for
Second, the Ninth Circuit found that the conduct of the Oregon
attorney who assisted in Winterrowd "did not rise
to the level of 'appearing' before the district court." Id.
Rather, the attorney "had the role of advising his son and
reviewing the pleadings. . ." and the Court analogized this to the
role a "consultant." Id. Mr. Wilborn's role,
however, went far beyond that of a consultant or advisor. As the fee
application demonstrates, virtually all of the research, factual and
legal analysis and writing was performed by Mr. Wilborn. See
eg. Crismore v. Astrue, 2010 WL 1258188 (D. Mont. 2010)
(denying EAJA fees where the non-admitted attorney was not eligible to
practice pro hac vice and his role rose to the
level of an appearance).
Therefore, the parties are ORDERED to submit additional briefing on this issue. Plaintiff's additional briefing is due within 14 days of the date of service of this order. Plaintiff's additional briefing shall also include a declaration from both Ms. Bosavanh and Mr. Wilborn identifying ALL actions before this Court in which Mr. Wilborn performed legal work. This includes cases where Plaintiff was unsuccessful in obtaining a remand and cases where the parties stipulated to an EAJA award.
Defendant may file a reply within 7 days of service of Plaintiff's brief.
If the parties fail to provide further briefing, the Court will decide the issue without the benefit of the parties' input.
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