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Sammy Voravong v. Michael J. Astrue

September 18, 2011

SAMMY VORAVONG,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S REQUEST FOR AN AWARD OF FEES AND EXPENSES PURSUANT TO 28 U.S.C. § 2412 (Doc. 23)

I. INTRODUCTION

On January 25, 2011, the Court issued an order that the administrative law judge's ("ALJ") decision be reversed and directed that judgment be issued in favor of Plaintiff Sammy Voravong. (Doc. 19.) As Plaintiff was the prevailing party, he filed an application for fees and expenses pursuant to the Equal Access to Justice Act ("EAJA") on April 21, 2011, requesting $8,047.95. (Doc. 22.) Plaintiff's EAJA application was not opposed by Defendant.*fn1

On May 16, 2011, the Court issued an order requiring the parties to submit additional briefing regarding whether Plaintiff may recover attorney's fees for work performed by Mr. Ralph Wilborn, who is not a member of either the California Bar or the Bar of this Court. The parties each filed a supplemental brief addressing this issue. (Docs. 25, 26.) For the reasons set forth below, the Court GRANTS Plaintiff's request for an award of fees and expenses pursuant to the EAJA.

II. DISCUSSION

A. Plaintiff is Entitled to Fees for Work Performed by Mr. Wilborn

1. Supplemental Briefing

On April 21, 2011, Plaintiff filed an application requesting attorney's fees in the amount of $8,047.95 pursuant to EAJA, 28 U.S.C. § 2412(d). (Doc. 22.) The application sought EAJA fees for 34.5 hours of work performed by Ralph Wilborn, Esq., an Oregon practitioner. (See Doc. 22-3.) Mr. Wilborn was employed by Plaintiff's attorney of record in this matter, Sengthiene Bosavanh, Esq., to perform legal work related to this appeal.

Although this request for EAJA fees was unopposed by the Commissioner, the Court, sua sponte, requested additional briefing as to whether Plaintiff was entitled to EAJA fees for work performed by an attorney who is not a member of the Bar of the State of California or this Court; he had also not applied to appear pro hac vice. In the order regarding supplemental briefing, it was noted that the United States Court of Appeals for the Ninth Circuit had addressed a similar question in Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815 (9th Cir. 2009).

In Winterrowd, the Ninth Circuit held that an Oregon attorney who was not admitted to the California State Bar or admitted to practice pro hoc vice in the Central District of California may 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 on a finding that the non-admitted attorney "would have certainly been permitted to appear pro hac vice" had he applied. Id. at 822. Here, both parties filed supplemental briefs addressing the application of Winterrowd. (Docs. 25, 26.)

2. Fees for Work of Non-Admitted Practitioner Awardable Under EAJA

Pursuant to this Court's Local Rule ("L.R.") 180(b), "[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 and is predicated on active and good standing with the State Bar of California. L.R. 180(b). Attorneys who are not members of the Court's Bar may appear pro hac vice, pursuant to the following Local Rule:

(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 ...


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