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Kathryn Roberts v. Michael J. Astrue

July 12, 2011

KATHRYN ROBERTS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

ORDER REGARDING PETITION FOR FEES Document 27

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 14, 2010, by Plaintiff Kathryn Roberts ("Plaintiff"). Defendant filed an opposition on January 13, 2011, arguing that the fee requested is unreasonable and should be reduced. Plaintiff filed her reply on January 21, 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, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

BACKGROUND

Plaintiff filed the instant Complaint challenging the denial of benefits on September 7, 2009.

On October 4, 2010, the Court granted Plaintiff's Complaint and remanded the action for further proceedings. Specifically, the Court found that the ALJ erred by failing to develop the record, failing to provide specific and legitimate reasons for rejecting the treating physician's opinion and failing to set forth adequate reasons for rejecting Plaintiff's credibility.

Judgment was entered in favor of Plaintiff on October 4, 2010.

By this motion, Plaintiff seeks $9,119.75 in attorneys' fees. In opposition, Defendant contends that the requested fees are unreasonable and suggests that the Court award no more than $4,500.00 in attorneys' fees.

DISCUSSION

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.

Mr. Wilborn declares that 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 attorneys 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, if any, for his legal work would be entirely separate from compensation for Ms. Bosavanh's legal work and limited to the amount order pursuant 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 ...


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