Gibby v. Astrue

Filing 22

ORDER granting in part and denying in part 18 Motion for Attorney Fees under the Equal Access to Justice Act; denyng as premature 18 Motion for Attorney Fees under the Social Security Act; on or before 15 days from entry of this Order, Attys Russell Bowling and Charles Martin shall show cause why either or both of them may not be sanctioned (SEE ORDER FOR FURTHER DETAILS). Signed by District Judge Martin Reidinger on 8/2/12. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:09cv29

CASEY ELLISON GIBBY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney’s
Fees under the Equal Access to Justice Act and the Social Security Act [Doc.
18].
PROCEDURAL HISTORY
On May 12, 2009, the Plaintiff initiated this action for judicial review of
the denial of her application for Social Security Disability Benefits and for an
award of benefits based on an onset date of disability of July 18, 2003. [Doc.
1]. The Complaint and the Motion for Summary Judgment were signed only
by Russell Bowling (Bowling) as the attorney for the Plaintiff. [Id.; Doc. 8].
However, the Memorandum of Law in support of the Plaintiff’s Motion for

Summary Judgment was signed by Charles Martin (Martin) as attorney for the
Plaintiff “On the brief.” [Doc. 9 at 30]. Because of this discrepancy, the Court
required Martin to seek admission to practice in this Court pro hac vice. [Doc.
12]. Martin was subsequently so admitted.1 [Doc. 14].
On October 28, 2011, the Plaintiff’s Motion for Summary Judgment was
granted to the extent that she sought reversal of the Commissioner’s decision
denying her disability benefits. [Doc. 26]. To the extent that she sought an
immediate award of benefits, the motion was denied. [Id.].

The Court

remanded the case pursuant to Sentence Four of 42 U.S.C. §405(g) to the
Commissioner for further administrative action consistent with the decision.2
[Id.]. As a result, the Defendant’s Motion for Summary Judgment was denied.
[Id.]. Judgment was simultaneously entered reversing the Commissioner’s
decision and remanding the case. [Doc. 17].
On January 25, 2012, the Plaintiff timely filed the pending motion
seeking attorney’s fees.3

[Doc. 18].

The title of the motion seeks fees

1

This admission avoided the issues presented in Priestley v. Astrue, 651 F.3d
410 (4th Cir. 2011), as to Martin.
2

Specifically, the case was remanded for further development of the issue of the
Plaintiff’s mental retardation in order to determine whether the Plaintiff meets the
requirements of 20 C.F.R., Pt. 404, Subpt. P, App. 1, §12.05. [Id. at 7-10].
3

The motion for fees was timely because it was filed within thirty days of the date
the Judgment became final; that is, upon the expiration of the time for appeal. Shalala
2

pursuant to both the Equal Access to Justice Act (EAJA), 28 U.S.C. §2412(d)
and the Social Security Act, 42 U.S.C. §406(b). [Doc. 18]. Because there has
not been an award of past-due benefits, however, the Court will only address
the request for fees pursuant to EAJA. 42 U.S.C. §406(b)(1)(A). Indeed, the
demand for relief refers only to fees pursuant to EAJA. [Doc. 19 at 2].
The Defendant responded to the motion for an award of fees, making
specific objections thereto. [Doc. 20]. The Plaintiff thereafter filed a reply.
[Doc. 21].
STANDARD OF REVIEW
EAJA provides that a district court “shall award to a prevailing party ...
fees and other expenses ... incurred by that party in any civil action” against
the United States, or an agency thereof, “unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §2412(d)(1)(A). Here, the
Defendant does not dispute that the Plaintiff was a prevailing party.4 [Doc. 32].
Nor does he claim that the position of the agency was substantially justified

v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). When the
United States or an agency thereof is a party, the time within which a notice of appeal
may be filed is sixty days after entry of the judgment. Fed.R.App.P. 4(a)(1)(B).
4

A party achieving a Sentence Four remand is a prevailing party. Shalala, 509
U.S. at 300-302.
3

or that special circumstances make an award unjust. [Id.]. The Defendant
does, however, object to both the time spent and the hourly rate requested by
counsel. [Id.].
EAJA provides for an award of “reasonable” attorney’s fees. 28 U.S.C.
§2412(d)(2)(A).
The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate. This
calculation provides an objective basis on which to make an initial
estimate of the value of a lawyer’s services. The party seeking an
award of fees should submit evidence supporting the hours
worked and rates claimed. Where the documentation of hours is
inadequate, the district court may reduce the award accordingly.
The district court should also exclude from this initial fee
calculation hours that were not “reasonably expended.” Cases
may be overstaffed, and the skill and experience of lawyers vary
widely. Counsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee
submission. ... Hours that are not properly billed to one’s client
also are not properly billed to one’s adversary pursuant to
statutory authority.
Hensley v. Echerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983), abrogated on other grounds by Texas State Teachers Ass’n v.
Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103
L.Ed.2d 866 (1989)) (internal quotation and citation omitted) (emphasis in
original). The fee applicant bears the burden of establishing the reasonable
4

time expended as well as a reasonable hourly rate. Hyatt v. Barnhart, 315
F.3d 239, 253 (4 th Cir. 2002).
DISCUSSION
The first review is of the hours spent in the representation of the Plaintiff
in this Court. The Complaint filed in this action is a mere two pages in length.
[Doc. 1]. Bowling, however, has provided an affidavit in which he states that
his paralegal expended 1.0 hour drafting the Complaint and he spent .50 hour
reviewing it. [Doc. 19-3 at 5]. The Court finds this amount unreasonable in
view of the length of the Complaint and the lack of detail contained therein.
Louis v. Astrue, 2012 WL 92884 **4-5 (E.D.Cal. 2012) (reducing time in view
of “the pro forma nature of ... the complaint”). The compensable time will
therefore be reduced to .50 hour of paralegal time for drafting and .25 hour for
review by the attorney.
Bowling has listed 1hour of time expended by his paralegal for the filing
of documents and .50 hour spent by him to file Martin’s motion for admission
to the Court pro hac vice. [Doc. 19-3 at 5]. The filing of a document is a
“purely clerical or secretarial” activity which is not billable at a paralegal’s rate
or, indeed, any rate at all since such tasks are included in office overhead.
Holmes v. Astrue, 2010 WL 3220085 **2 (D.S.C. 2010) (quoting Missouri v.

5

Jenkins, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).
Thus, “[w]hen clerical tasks are billed at hourly rates, the court should reduce
the hours requested to account for the billing errors.” Nadarajah v. Holder,
569 F.3d 906, 921 (9 th Cir. 2009). This time will therefore be excluded.
Bowling states that he spent .50 hour reviewing the Defendant’s Answer
to the Complaint. [Doc. 19-3 at 5]. The Answer, which is standard in both form
and content, is a mere two and one-half pages in length. [Doc. 6]. It is difficult
to understand why an attorney of Bowling’s experience would require this
much time to review it. The time will be reduced to .25 hour.
Likewise, Bowling spent .20 hour reviewing the Scheduling Order, a task
which is usually performed by staff. [Doc. 19-3 at 5]. Giving Bowling the
benefit of supervisory control over such staff, the time will be reduced to .10
hour. The time records show that Bowling spent as much time reviewing this
Court’s one page Order (Doc. 14) granting Martin’s request for pro hac vice
admission as he did reviewing the Court’s ten page Memorandum of Decision
and Order (Doc. 16) granting the Plaintiff relief. [Id.]. The time spent reviewing
the grant of admission will be reduced to .10 hour.
Applying these reductions to Bowling’s services, his request for
attorney’s fees is reduced to 4.00 hours. Bowling’s paralegal time is reduced

6

to .90 hours.
Martin has provided an affidavit in which he states that he provided 5.30
hours of “brief writing services” to Bowling. [Doc. 19-4 at 1]. The time sheet,
however, discloses that Martin verified service on the Defendant, noted that
the Defendant had filed the administrative record, noted that the case had
been assigned to a different judge, and noted that defense counsel had been
substituted. [Id. at 4]. None of these tasks constitute brief writing; they are
instead administrative functions that are more appropriately performed by
staff. Holmes, 2010 WL 3220085. Martin also lists time which was duplicative
of the same tasks performed by Bowling, such as reviewing the Scheduling
Order and Answer, performing revisions to the memorandum of law and
reviewing the Defendant’s Motion for Summary Judgment. [Doc. 19-4 at 4].
These functions are redundant of time spent by Bowling and/or his paralegal.
Hensley, 461 U.S. at 434 (“Cases may be overstaffed[.]” Counsel should
“exclude from a fee request hours that are excessive [and] redundant[.]”).
“[T]he court should disallow not only hours spent on tasks that would normally
not be billed to a paying client, but also those hours expended by counsel on
tasks that are easily delegable to non-professional assistants.” Spegon v.
Catholic Bishop of Chicago, 175 F.3d 544, 553 (7 th Cir. 1999). Martin’s time

7

is therefore reduced to a total of 1.30 hours.
Jane Muller Peterson (Peterson) is an associate with Martin’s firm. [Doc.
19-5 at 2]. She is admitted to the bar of the District Courts of the Middle
Districts of Wisconsin and Pennsylvania. [Id at 1]. She was not admitted pro
hac vice in this Court and she was not listed on the Memorandum of Law as
counsel “on the brief.” [Doc. 9 at 30]. Indeed, the first time the Court became
aware of Peterson’s extensive involvement in this case was when the pending
motion for an award of fees was filed.5 Had the Court been made aware of
her involvement, she would have been required to move for admission to the
Court pro hac vice, just as Martin was required to do so. Indeed, in the Order
requiring Martin to make such a filing, this Court ruled as follows:
The Court will allow Mr. Martin to apply for admission in this
matter pro hac vice, with that admission to be nunc pro tunc to the
filing of the case. If any other attorneys who are not licensed
to practice before this Court have likewise actively
participated in the representation of the Plaintiff in this
matter, such other attorneys must also apply for admission
pro hac vice within the same time period as allowed for Mr.
Martin.
[Doc. 12 at 5-6] (emphasis added).
Both Bowling and Martin have filed affidavits in which they stated that
this language was reviewed; and, indeed, each seeks to be paid for such

5

Peterson claims to have performed 41.50 hours of legal writing. [Doc. 19-5 at 4].
8

review. [Doc. 19-3 at 5; Doc. 19-4 at 4]. Despite the directive contained within
the Order, neither of them disclosed Peterson’s involvement to the Court. It
is likely that Peterson herself was completely unaware of the directive
contained within this Order. Bowling and Martin, however, will be required to
explain why they did not disclose her involvement.6
In determining whether and to what extent the Plaintiff may receive an
award of attorney’s fees in connection with Peterson’s services, this Court is
constrained by the recent decision of the United States Court of Appeals for
the Fourth Circuit in Priestley.
EAJA authorizes the plaintiffs to receive reimbursement for work
performed by an attorney, regardless of whether the attorney
performing the work is admitted to practice or not. We therefore
conclude that the EAJA authorizes reimbursement for work of the
type performed by Martin and Naides in assisting [counsel of
record] with brief writing and related tasks.
...
Martin and Naides never physically appeared in court or before
the judge; they never filed a brief or paper in court; they never
communicated with opposing counsel; they never even
communicated with the plaintiffs; their work agreement was with
McChesney, a member of the district court bar, and not with the
plaintiffs; and they prepared only drafts of briefs and papers which
they then submitted to McChesney for editing, signing, and filings
with the court. Even though their names were sometimes
included on briefs as attorneys for the plaintiffs and they stated in
their EAJA affidavits that they were attorneys for plaintiffs, the

6

Bowling is the attorney of record for the Plaintiff and Martin presumably
supervises Peterson, who is an associate with his firm.
9

nature of their brief-writing function in supporting McChesney
never changed.
...
McChesney “acted as a filter” between the plaintiffs and Martin
and Naides, the nonadmitted Social Security specialists, with the
result that their brief-writing assistance was likewise permissible.
While it may be unjust to compensate individuals who, without
proper licensure, directly represent clients and, on their behalf, file
papers and appear before the court, there is nothing inequitable
or “unclean” about the supporting role that Martin and Naides
actually played in these cases.
...
Because the EAJA provides reimbursement for fees incurred by
persons, whether licensed attorneys or not, we believe that the
district court must reconsider the fees of Martin and Naides. To
be sure, it could choose to treat them as nonattorneys who
provided support to McChesney, similar in nature to the work
performed by other nonadmitted attorneys, such as law clerks or
paralegals. ... The court should take the work of Martin and
Naides at least as the work of nonattorneys who provided
McChesney support in writing briefs. But it is also free to take
their work as falling in the class of attorney work for which
admission to the district court might not be necessary. In
calculating any fee awards for the work performed by Martin and
Naides, the district court should determine the prevailing market
rate for services of the kind provided by them, based on their
training, skill and experience; provided that in no event may this
rate be less than the rate traditionally used for summer
associates, paralegals, and other nonattorneys performing legal
work.
Priestley, 651 F.3d at 416-19.
Peterson has provided an affidavit in which she documented 41.50
hours of “legal services.” [Doc. 19-5 at 3]. On the time sheet, those services
are described as drafting briefs. [Id.]. Bowling has provided an affidavit in
10

which he describes Peterson’s role as “reviewing the transcript and preparing
the statement of the case, and writing the brief in support of Russell R.
Bowling.” [Doc. 19 at 2]. In his role as counsel of record, Bowling “[p]roofread,
reviewed and made changes to Memorandum in Support of Motion for
Summary Judgment.” [Doc. 19-3 at 5]. All filings were performed by Bowling’s
staff. [Id.]. The record does not disclose that Peterson had any contact with
the Plaintiff or opposing counsel. The Court therefore concludes that the
Plaintiff is entitled to recover a reasonable fee for the services of Peterson.
Carroll v. Astrue,

F.Supp.2d

, 2012 WL 379996 (W.D.N.C. 2012).

The Defendant has objected to the time expended by Peterson in
preparing the Plaintiff’s Motion for Summary Judgment. [Doc. 20]. He has
pointed out that, while counsel here seek reimbursement for 52 hours, the
majority of social security cases before district courts yield attorney time of
between twenty and forty hours. [Id. at 3].

The Court agrees with this

assessment. Patterson v. Apfel, 99 F.Supp.2d 1212, 1214 n.2 (C.D.Cal.
2000) (survey of social security disability cases shows an average range of
twenty to forty hours). The transcript reveals, as argued by the Defendant,
that the legal theory asserted in this Court mirrored that presented to the
Appeals Council. [T. 423-24]. And, the Court finds that the case did not

11

present a level of complexity unusual to Social Security cases. [Doc. 9]. The
Defendant argues that the amount of time expended by Peterson was due to
her inexperience in the field. [Doc. 20 at 4]. He thus objects to an award
based on a total of 41.50 hours of time expended by Peterson.
Peterson’s work in this case was performed in August 2009 and she has
disclosed that her first representation of Social Security disability claimants in
federal appeals began in June 2009.

[Doc. 19-5 at 2-3].

“Looking at

counsel’s billing statements, it is clear it was not the complexity of the case
that caused the lengthy expense of time, but rather the inexperience of new
counsel.” Harden v.Commissioner, 497 F.Supp.2d 1214, 1216 (D.Or. 2007).
Both Bowling and Martin have significant experience in social security
matters. Id. Peterson, however, was admittedly new to the practice. Id.
While the time she spent on this brief may be reasonable for an attorney
inexperienced in this area of the law, it is not reasonable “to shift the total
financial burden of training new counsel onto the government.” Id. (citing
DeGennaro v. Bowen, 666 F.Supp. 426, 428 (E.D.N.Y. 1987). “[A]ccounting
for various levels of experience is one of the things the Supreme Court was
referring to when it instructed counsel to exercise ‘billing judgment’ in
requesting fees.”

Id. (citing Hensley, 461 U.S. at 434).

12

The Court will

therefore reduce the requested hours to bring the total within the range that
an experienced attorney would normally request for the same or similar work.
Tibbits v. Chater, 1995 WL 783212 (D.Kan. 1995).
In this regard, the Court would not be inclined to reduce the time spent
in reviewing the administrative record but instead the time spent in drafting the
brief. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10 th Cir. 1998)
(court should examine hours allotted to specific tasks). Counsel, however, did
not separate the time spent reviewing the record from the time spent in
writing. Id. (court may discount requested hours if attorney failed to keep
meticulous time records disclosing how time was allotted to specific tasks).
Since Peterson failed to separate those items, the Court finds that an attorney
experienced in this field should have been able to review the administrative
record and produce a brief in a case such as this one within twenty-five hours.
Ramos v. Lamm, 713 F.2d 546, 555 (10 th Cir. 1983), overruled on other
grounds Pennsylvania v. Del. Valey Citizens’ Council for Clean Air, 483 U.S.
711, 725, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (district court should
approach the evaluation of time spent “much as a senior partner in a private
law firm would review the reports of subordinate attorneys when billing clients
... .”). Peterson’s time is therefore reduced to 25 hours.

13

The application is therefore reduced to a total of 30.30 hours for attorney
time and .90 hour for paralegal time.
Next, the reasonableness of the hourly rate is considered. EAJA
provides that the “amount of fees awarded ... shall be based upon prevailing
market rates for the kind and quality of services furnished, except that ...
attorney fees shall not be awarded in excess of $125 per hour unless the
court determines that an increase in the cost of living ... justifies a higher
fee.” 7 28 U.S.C. §2412(d)(2)(A). The decision to make an upward adjustment
of the statutory cap is a matter within the Court’s sound discretion. Payne v.
Sullivan, 977 F.2d 900, 901 (4 th Cir. 1992).
“Almost every court that has applied [§2412(d)(2)(A)] has held ... that
‘cost of living’ has th[e] ordinary meaning [of costs of food, shelter, clothing
and other basic goods and services] and is properly measured by the
Consumer Price Index.” Harris v. Sullivan, 968 F.2d 263, 265 (2 nd Cir. 1992)
(collecting cases); Sullivan v. Sullivan, 958 F.2d 574 (4 th Cir. 1992) (a general
cost of living index such as the United States Department of Labor’s
Consumer price Index for all urban consumers is the appropriate measure by
which to calculate a cost of living enhancement to a statutory fee); Deitz v.

7

Although the statute provides for an increase when the case involves a “special
factor,” the Plaintiff here has not presented this issue.
14

Astrue, 2011 WL 4368377 (W.D.N.C. 2011). “The Consumer Price Index data
published by the Bureau of Labor Statistics reflects that the cost of living
increased from 155.7 in March 1996, the date that the statutory rate of $125
per hour was established,” to an average rate of 224.939 in 2011. Senechal
v. Astrue, 2011 WL 1843189 **2 (W.D.N.C. 2011); [Doc. 20 at 7 n.3].
The Plaintiff seeks an hourly rate of $181.78 which is represented to be
the $125.00 hourly rate prescribed by EAJA adjusted for inflation by 45.42%.
[Doc. 19 at 3]. The Defendant objects, noting that the Plaintiff has applied the
inflation adjustment uniformly instead of using the applicable adjustment for
each individual year. [Doc. 20 at 6-7]. The Plaintiff has replied that she does
not object to the methodology used by the Defendant. [Doc. 21 at 4].
This case was filed in May 2009 with attorney’s services performed in
that year as well as 2010 and 2011 until the Judgment remanding the action
was entered. The application for an award of attorney’s fees was performed
in 2012.

The hourly rate pursuant to EAJA, therefore, “should

only be

increased by the corresponding Consumer Price Index for each year in which
the legal work was performed.” Kerin v. U.S. Postal Service, 218 F.3d 185,
194 (2 nd Cir. 2000).
28 U.S.C. §2412(d) does not authorize indexing attorney’s fees
awards at current rates. If a cost of living adjustment is applied,
15

it must be calculated with regard to when the services were
performed, not on the basis of when the award is made. Thus,
fees incurred in a particular year must be indexed using the cost
of living multiplier applicable to that year, and so on for each year
in which fees were incurred.
Marcus v. Shalala, 17 F.3d 1033, 1040 (7 th Cir. 1994); Kerin, 218 F.3d at 194
(“Using a single cap reflecting the cost of living in [2011] for all nine years to
calculate the amount of attorney’s fees would result in a de facto award of prejudgment interest, which would constitute an abuse of discretion.”); Dixon v.
Astrue, 2008 WL 360989 **4 (E.D.N.C. 2008).
The Court, having reviewed the Defendant’s position and finding it
legally correct, adopts it. The Defendant has properly calculated those rates
as follows: (1) $172.24 per hour for the year 2009; (2) $175.06 per hour for
2010; and (3) $180.59 per hour for 2011 and 2012. [Doc. 20 at 6 n.1, 7];
Ramon-Sepulveda v. I.N.S., 863 F.2d 1458, 1463 n.4 (9 th Cir. 1988),
abrogated on other grounds by Sorenson v. Mink, 239 F.3d 1140, 1148-49 (9 th
Cir. 2001); Deitz, 2011 WL 4368377 (using the same formula to derive the
inflation adjusted fee cap).
The attorney’s fees for each year are therefore calculated as follows:
(1)

28.6 hours performed in 2009 at the hourly rate of $172.24 = $4,926.06;

(2)

3.2 hours performed in 2010 at the hourly rate of $175.06 = $560.19;

16

(3)

1.30 hours performed in 2011 and 2012 at the hourly rate of $180.59 =
$234.77;

(4)

Total attorney’s fees = $5,721.02.
The Court therefore finds that the “increase in the cost of living justifies

a corresponding increase in the hourly rate in this case. [T]his higher hourly
rate is consistent with the prevailing market rates for services charged by
lawyers of similar talents and experience in this District.”8 Senechal, 2011 WL
1843189 **2.
The Plaintiff also claims fees for paralegal services performed at the
hourly rate of $65.00.

The Defendant has not objected and the Court

therefore finds this rate is reasonable and in keeping with the prevailing
market rates for paralegals in this District. Trim v. Astrue, 2012 WL 1340671
**2 n.1 (W .D.N.C. 2012). Applying the hourly rate of $65.00 to .90 hours of
paralegal time, the Plaintiff is entitled to an award of $58.59 for paralegal
services.
The Plaintiff has attached to the motion a copy of the fee agreement
entered into with Bowling in which she assigns any attorney’s fee award

8

The Plaintiff attached to her motion affidavits from attorneys in this District in
which the prevailing market rates for social security attorneys were addressed. [Doc.
19-6 through 10-10].
17

pursuant to EAJA directly to counsel. [Doc. 18-1]. The Court finds that the
Commissioner should accept the assignment of the awarded fees by the
Plaintiff to her attorney and shall pay that award of fees directly to Plaintiff’s
counsel; provided however, it is shown that as of the date of this Order, the
Plaintiff does not owe any debt to the United States Government which is
subject to offset. Astrue v. Ratliff,

U.S.

, 130 S.Ct. 2521, 177 L.Ed.2d 91

(2010). In the event that the Plaintiff does, in fact, owe the United States
Government any debt subject to offset, the Commissioner shall pay any
attorney’s fees remaining after such offset to the Plaintiff instead of to her
attorney.
In addition, should counsel receive an attorney’s fee award pursuant to
the Social Security Act, he shall refund to the Plaintiff the smaller award. 42
U.S.C. §406(b)(2).
Plaintiff’s counsel seeks reimbursement for the $250.00 filing fee
incurred by Martin when, in compliance with this Court’s Order, he moved for
admission pro hac vice. No statutory or case law in support of that request is
cited. In her Reply, the Plaintiff argues that Martin was forced to incur this
expense due to the Court’s Order requiring that he move for such admission.
[Doc. 21 at 3-4]. In that Order, this Court wrote:

18

The Court will strongly emphasize ... that pro hac vice admission
is not a substitute for being licensed to practice in this Court. The
Court is willing to allow pro hac vice admission to an attorney
otherwise unlicensed in this District only a limited number of
times. Thereafter, obtaining a permanent license for practice in
this Court will be necessary for such attorney to appear any
further. Otherwise this Court would serve to by-pass the very
important function played by the Board of Law Examiners and the
State Bar of North Carolina.
[Doc. 12 at 6].
The role of this Court in requiring such admission was recognized by the
Fourth Circuit in Priestley.

“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.”

Priestley, 651 F.3d at 416.

Requiring Martin to move for

admission pro hac vice was thus within this Court’s inherent authority. 28
U.S.C. §1651.
In addition, pro hac vice fees are not subject to taxation as a cost
pursuant to 28 U.S.C. §1920 because they are an expense of counsel, not the
client. Moss v. Spartanburg County School Dist. No. 7, 2011 WL 1870280
(D.S.C. 2011). Pro hac vice fees “are an expense that an attorney pays for
the privilege of practicing law in a district and should not be taxed to a
[defendant] simply because a [plaintiff] chooses to be represented by counsel

19

not admitted to practice in the district.”

Lofton v. McNeil Consumer &

Specialty Pharmaceuticals, 2011 WL 206165 **1 (N.D.Tex. 2011); but see
Craftsmen Louisiana, Inc. v. Ford Motor Co., 579 F.3d 894, 898 (8 th Cir.
2009).
Finally, the Court will require Bowling and Martin to show cause why
they should not be sanctioned for failing to disclose to the Court that Peterson
was performing brief writing services without admission pro hac vice.
District courts have inherent power to issue sanctions, a power
which is not governed by rules of procedure or statutes but by the
control vested in courts to manage their affairs in such a way as
to efficiently dispose of cases.
Kochensparger v. Astrue, 2012 WL 1944862 **3 (W.D.N.C. 2012) (citing
Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27
(1991)).
The power of a court over members of its bar is at least as great
as its authority over litigants. If a court may tax [sanctions]
against a party who has litigated in bad faith, it may certainly
assess [sanctions] against counsel who willfully abuse judicial
processes.
In re Crescent City Estates, LLC, 588 F.3d 822, 831 (4 th Cir.), cert. denied
U.S.

, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010) (internal quotation and

citation omitted).

20

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney’s
Fees under the Equal Access to Justice Act [Doc. 18] is hereby GRANTED
in part and DENIED in part as stated herein and the Plaintiff is hereby
awarded attorney’s fees in the amount of Five Thousand Seven Hundred
Seventy-Nine Dollars and Sixty-One Cents ($5,779.61) which sum is in full
satisfaction of any and all claims by the Plaintiff in this case pursuant to EAJA,
28 U.S.C. §2412(d), and subject to the limitations set forth herein.
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Attorney’s
Fees under the Social Security Act [Doc. 18] is hereby DENIED as premature.
IT IS FURTHER ORDERED that the Commissioner shall inform
Plaintiff’s counsel whether the Plaintiff owes a debt to the Government by
which this fee award may be offset no later that thirty (30) days from entry of
this Order. Provided that the Plaintiff does not owe any debt to the United
States Government which is subject to offset, the Commissioner shall honor
the Assignment of fees. In the event that the Plaintiff does, however, owe the
United States Government any debt subject to offset, the Commissioner shall
pay any attorney’s fees remaining after such offset to the Plaintiff instead of
to his attorney.

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IT IS FURTHER ORDERED that no additional Petition pursuant to 28
U.S.C. §2412(d) may be filed.
IT IS FURTHER ORDERED that on or before fifteen (15) days from
entry of this Order, Attorneys Russell Bowling and Charles Martin shall show
cause why either or both of them may not be sanctioned pursuant to this
Court’s inherent power for the failure to comply with the directive of the Court
contained in its Order on July 6, 2010 [Doc. 12] and/or for the failure to
disclose to the Court the involvement of Attorney Jane Muller Peterson.
Signed: August 2, 2012

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