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Kham Singmoungthong v. Michael J. Astrue

July 12, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


This matter is before the Court on a petition for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on December 16, 2010, by Plaintiff Kham Singmoungthong ("Plaintiff"). Defendant filed an opposition on January 18, 2011, arguing that the fee requested is unreasonable and should be reduced. Plaintiff filed a reply on January 26, 2011.

On April 8, 2011, the Court held a hearing on the petition to explore whether Ralph Wilborn, who is not a member of the Bar of this Court or the California Bar, can recover fees under EAJA. Linda Ziskin appeared on behalf of Plaintiff and Shea Bond appeared on behalf of the Commissioner. The Court also ordered the parties to submit additional briefing, which was completed on June 29, 2011.

The matter is currently before the Court on the parties' briefs, which were submitted to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1


Plaintiff filed the instant Complaint challenging the denial of benefits on July 29, 2009. On September 17, 2010, the Court granted Plaintiff's Complaint and remanded the action for further proceedings. The Court found that the ALJ erred (1) in finding that Plaintiff could perform her past relevant work, (2) by failing to develop the record regarding the VE's testimony and the medical evidence where Plaintiff was not represented, and (3) by failing to properly analyze the lay witness testimony. Judgment was entered in favor of Plaintiff on September 17, 2010.

By this motion, Plaintiff seeks $10,285.99 in attorneys' fees for 59 hours of attorney time. In opposition, Defendant contends that the requested fees are unreasonable and suggests that the Court award no more than $5,180.09.


I. Mr. Wilborn's Entitlement to Fees

A. Background

The instant application seeks recovery of fees for work performed by attorneys Sengthiene Bosavanh and Ralph Wilborn.*fn2 While Ms. Bosavanh is a member of the California State Bar and the Bar of this Court, Mr. Wilborn is not.

Mr. Wilborn is a member of the Oregon State Bar and resides in Arizona. He is also a member of the United States District Court for the District of Oregon, the Ninth Circuit Court of Appeals, the United States Court of Appeals for Veterans Claims and the United States Supreme Court. December 16, 2010, Affidavit of Ralph Wilborn.

Pursuant to his Declaration, he began performing legal work for Ms. Bosavanh in July 2009 based on the understanding that his sole compensation would be the fees awarded for his time under EAJA. Mr. Wilborn's legal work included "primary research and drafting of briefs and ancillary related legal work, at the federal district court level, for, and at the request of, Ms. Bosavanh, as generally authorized under her clients' retainer agreements, on a temporary basis, case-by-case." The parties agreed that Mr. Wilborn's drafts of briefs submitted to Ms. Bosavanh would be considered, by him, to be "finished work products, appropriate for filing, with little, if any, revision required." They further agreed that as a member of the Bar of this Court and the Bar of the State of California, Ms. Bosavanh had absolute authority to revise his legal work at her sole discretion and would file the documents under her name in compliance with Local Rules and Federal Rule of Civil Procedure 11. There was no written agreement, though the parties agreed that compensation for his legal work, if any, would be entirely separate from compensation for Ms. Bosavanh's legal work and limited to any amounts awarded pursuant to E.A.J.A. May 13, 2011, Declaration of Ralph Wilborn.

In September 2010, Mr. Wilborn advised Ms. Bosavanh that he would finish his legal work on cases he had already started but would not perform legal work on new cases. May 13, 2011, Declaration of Ralph Wilborn. Mr. Wilborn has provided legal services in approximately 68 cases in this Court. June 6, 2011, Declaration of Ralph Wilborn.

The Commissioner has no objection to Mr. Wilborn's receipt of fees under EAJA.

B. Analysis

Local Rule 180(b) states, "(e)xcept as otherwise provided herein, only members of the Bar of this Court shall practice in this Court." Admission to the Bar of this Court is limited to attorneys who are active members in good standing of the State Bar of California. Local Rule 180(a). However, attorneys who are not members of this Court's Bar may appear pro hac vice. Local Rule 180(b)(2) provides:

(2) Attorneys Pro Hac Vice. An attorney who is a member in good standing of, and eligible to practice before, the Bar of any United States Court or of the highest Court of any State, or of any Territory or Insular Possession of the United States, and who has been retained to appear in this Court may, upon application and in the discretion of the Court, be permitted to appear and participate in a particular case. Unless authorized by the Constitution of the United States or an Act of Congress, an attorney is not eligible to practice pursuant to (b)(2) if any one or more of the following apply: (i) the attorney resides in California, (ii) the attorney is regularly employed in California, or (iii) the attorney is regularly engaged in professional activities in California.

The Local Rules of this Court also expressly adopt the "standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California and court decisions applicable thereto" for practice before this Court. Local Rule 180(e).

It is undisputed that Mr. Wilborn is not a member of the California Bar or the Bar of this Court. It is also undisputed that Mr. Wilborn has not applied for admission pro hac vice.

The Fourth Circuit Court of Appeals recently issued an instructive decision. In Priestley v. Astrue, __F.3d __, 2011 WL 2641273, *1 (4th Cir. 2011), the Court held that the use of non-admitted lawyers for brief writing services in Social Security appeals did not present a "special circumstance" sufficient to deny fees as unjust under EAJA. In Priestley, plaintiffs in three Social Security appeals in the District of South Carolina sought fees for an attorney who was admitted to the Court, as well as fees for two attorneys who were not admitted to practice in South Carolina or before the Court. The non-admitted attorneys were licensed in Georgia and Pennsylvania and practiced their specialty of briefing Social Security appeals through their law firm in Georgia. They provided research and drafts of briefs to the admitted attorney for review, signing and filing, and never spoke with the client or opposing counsel. The two attorneys had worked on dozens of cases in the District of South Carolina since 2003 and their fee requests typically accounted for 75 to 85 percent of the total fees requested. After the Commissioner opposed the fee requests, the District Court denied the fees because the two attorneys were not admitted to practice law in South Carolina and were not admitted to practice pro hac vice. The District Court concluded that the out-of-state attorneys' lack of licensure was a "special circumstance" that made reimbursement of their fees "unjust." 28 U.S.C. § 2412(d)(1)(A).

In rejecting the District Court's conclusion, the Court of Appeals began with an analysis of EAJA's requirement that a district court award "fees and other expenses" to the prevailing party in a civil action against the United States unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

2011 WL 2641273, *3. The Court then defined the term "fees and other expenses," and found that the broad definition "indicates, without much doubt, that Congress intended to award a wide range of fees and expenses" unless an exception applies. 2011 WL 2641273, *4. Consistent with this intent, the Court previously awarded EAJA fees for work performed not only by attorneys, but also by persons doing "tasks traditionally performed by an attorney and for which the attorney would customarily charge the client, regardless of whether a licensed attorney, paralegal or law clerk performed them." 2011 WL 2641273, *4 (citation omitted). Based on this practice, the Court had "little difficulty in concluding that the EAJA authorizes the plaintiffs to receive reimbursement for the work performed by an attorney, regardless of whether the attorney performing the work is admitted to practice or not." 2011 WL 2641273, *4. The Court concluded:

In relying on this reasoning, we believe that the district court improperly linked the requirements for the practice of law in the district court with the requirements of the EAJA, thus limiting the scope of fees that the EAJA otherwise authorizes. And in doing this, the court ended up effectively sanctioning out-of-state attorneys for purported violations of its local rules by denying reimbursement for their fees under the EAJA. We conclude that the issues should not be so mixed, at least in the circumstances of this case, as they actually are separate matters.

The district court was, of course, rightfully concerned about the unauthorized practice of law in its court, and it has the authority to regulate that through local rules and an array of appropriate sanctions. We need not determine, however, whether Martin and Naides violated any local rules or, if they did, what the appropriate sanctions would be, because the violation in question, if any, was so attenuated and technical that it would not affect the plaintiffs' claims for fee awards ...

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