Carroll v. Commissioner of Social Security Administration

Filing 33

ORDER granting 21 Motion for Attorney Fees; granting 26 Motion for Attorney Fees. Signed by District Judge Martin Reidinger on 2/6/12. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:09cv54

TONY RAY CARROLL,
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.
21] and Plaintiff’s Motion for Attorney’s Fees under the Social Security Act
[Doc. 26].
I.

PROCEDURAL HISTORY
On October 22, 2010, this matter was remanded to the Social Security

Administration pursuant to Sentence Four of 42 U.S.C. § 405(g) on the
Defendant’s unopposed motion for reversal and remand for further
administrative proceedings. [Doc. 18].

On January 14, 2011, the Plaintiff

filed a motion for attorney’s fees in the amount of $6,812.12 pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

[Doc. 21].

Plaintiff’s request for an award of attorneys’ fees was based in part on work
performed by Russell R. Bowling, an attorney licensed in North Carolina and
admitted to the bar of this Court, and in part on work performed by Charles
Martin and Jane Muller-Peterson, out-of-state attorneys who are not admitted
to practice in this District.

[See Doc. 22].

On January 21, 2011, the

Defendant moved the Court to hold the Plaintiff’s motion in abeyance until the
Court of Appeals for the Fourth Circuit had decided a pending appeal in the
case of Priestley v. Astrue, a South Carolina case also involving Charles
Martin, which presented the issue of whether attorneys who are not admitted
to practice before the district court in which the case is pending should be
compensated under the EAJA. [Doc. 23]. The Court granted the Defendant’s
motion on February 25, 2011, and the Plaintiff’s request for attorney’s fees
was therefore held in abeyance. [Doc. 24].
On July 7, 2011, the Court of Appeals for the Fourth Circuit issued an
opinion in Priestley v. Astrue, 651 F.3d 410, 418 (4th Cir. 2011). Thereafter,
the Plaintiff received notification from the Social Security Administration on
September 1, 2011 that a favorable decision had been rendered in his case.
[Doc. 27-1]. The Social Security Administration commenced paying benefits
to the Plaintiff and withheld the sum of $18,709.75 to pay any subsequent

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award of attorneys’ fees. [Id.]. The Plaintiff then filed a motion seeking an
award of attorney’s fees in the amount of $8,709.75 pursuant to 42 U.S.C. §
406(b)(1).1 [Doc. 26]. The Defendant subsequently filed responses to both
of Plaintiff’s motions, indicating that he does not have any opposition to the
fees requested. [Docs. 30, 32].
II.

DISCUSSION
As noted above, this matter had been held in abeyance pending a

decision by the Fourth Circuit Court of Appeals in Priestley. Now that the
Priestley case has been decided, this matter is ripe for disposition.
The parties offer no argument as to what effect, if any, the Priestley
decision has on the Plaintiff’s ability to recover fees for the work performed by
attorneys Martin and Muller-Peterson. As the Defendant has consented to the
amount of fees requested by the Plaintiff, it is presumably the position of both
parties that Priestley has no adverse effect whatsoever on the Plaintiff’s ability
to recover. Nevertheless, the Court must examine the issue.
Priestley was a consolidated appeal of three separate Social Security
cases filed in the District Court for South Carolina. 651 F.3d at 412. In each

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Plaintiff’s counsel has requested the sum of $10,000.00 from the Social Security
Administration for services performed at the administrative level pursuant to 42 U.S.C.
§406(a). [Doc. 27 at 2]. Thus, the balance remaining is $8,709.75.
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case, the plaintiff was represented by a South Carolina attorney, Paul T.
McChesney. Id. In the course of representing these plaintiffs, McChesney
retained attorneys Charles Martin and Perrie H. Naides of the firm Martin and
Jones, a Georgia law firm, to assist him by providing legal research and drafts
of briefs and other filings. Id. at 413. Martin and Naides were not licensed to
practice law in South Carolina, nor were they admitted to practice in the
district court. Id. In the course of their work on the plaintiffs’ cases, Martin
and Naides never spoke with the plaintiffs nor with opposing counsel. Id.
Rather, their involvement was limited to submitting draft pleadings to
McChesney, who then reviewed, edited, signed, and filed the documents. Id.
Occasionally, Martin was listed on filed documents as “attorney for plaintiff”
or as being “on the brief,” and on some occasions, his name was
accompanied by an electronic signature. Id. In their affidavits submitted in
submitted in support of the fee request, Martin described himself as “counsel
for the plaintiff,” and Naides stated that she “provided legal services in support
of the representation.” Id. at 413-14.
The district court in Priestley declined to award fees under the EAJA to
the plaintiffs for the work performed by Martin and Naides. Specifically, the
district court reasoned that the attorneys’ failure to gain admission under the

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court’s local rules constituted a “special circumstance” which rendered a fee
award for their work “unjust” under 28 U.S.C. § 2412(d)(1)(A). Id. at 414. On
appeal, the Fourth Circuit reversed. Noting the limited role that Martin and
Naides served in representing the plaintiffs, the Court concluded that the use
of these non-admitted lawyers for brief writing services did not present special
circumstances sufficient to deny a fee award under the EAJA. Id. at 418
(“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.”).
Thus, according to the rule announced in Priestley, a party may recover
fees under the EAJA for the work performed by a non-admitted attorney, so
long as that attorney maintains a limited “supporting role,” such as providing
brief writing services to a party’s counsel.

If the non-admitted attorney

engages in direct representation of the client, such as appearing before the
court, meeting with the client, contacting opposing counsel, or filing papers on
the client’s behalf, then the Court may decline to award fees for such
attorney’s work under the EAJA.

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In the present case, Martin is licensed only in the State of Georgia, and
Muller-Peterson is licensed only in the Commonwealth of Pennsylvania.
Neither Martin nor Muller-Peterson is admitted to practice before this Court,
and neither has requested or obtained pro hac vice admission in this case.
Thus, in order to determine whether the Plaintiff is entitled to recover fees for
the services rendered by these attorneys, the Court must analyze the nature
of the work they performed as well as their relationship with the Plaintiff.
In his Affidavit submitted in support of the EAJA fee request, Martin
describes himself as an “attorney providing District Court and brief writing
services for Russell R. Bowling, attorney for plaintiff.” 2 [Doc. 22-4 at ¶1].
Muller-Peterson states in her Affidavit submitted in support of the fee request
that she “provided legal services in support of the representation of [Plaintiff]
to Russell R. Bowling.” [Doc. 22-5 at ¶1]. According to Bowling’s Sworn
Statement, Martin and Muller-Peterson had no contact with the Plaintiff during
the course of this litigation. [Doc. 22-3 at ¶9]. Bowling alone signed and filed
the Complaint. [See Doc. 1]. In his Sworn Statement, Bowling states that
Martin and Muller-Peterson reviewed the Plaintiff’s case and presented him
with “a memo setting out a proposed strategy for litigation.” [Doc. 22-3 at

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Martin does not specify what kind of “District Court services” he provided to
Bowling in this case.
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¶10]. Bowling states that upon reviewing the facts of the case, the applicable
law, and the above-referenced memo, he authorized Martin and MullerPeterson to prepare the Plaintiff’s brief. [Id. at ¶11]. Bowling further states
that he evaluated and revised the brief prepared by Martin and MullerPeterson and upon approving it, filed it with the Court. [Id. at ¶¶13, 14].
Martin and Muller-Peterson are listed as being “on the brief” on the
Memorandum in support of the Motion for Summary Judgment. [Doc. 15 at
30]. The Memorandum, however, is electronically signed and filed only by
Bowling. [Id. at 29]. According to Bowling, Martin and Muller-Peterson have
provided no services to the Plaintiff except as a part of Bowling’s own work
product. [Id. at ¶¶9, 12].
Bowling’s relationship with attorneys Martin and Muller-Peterson
appears to be similar to the relationship between the non-admitted attorneys
and the plaintiffs’ counsel in Priestley. Some aspects of the attorneys’
relationship, however, do give the Court pause. For example, Bowling states
that Martin and Muller-Peterson evaluated the merits of the case and provided
him with a memorandum setting out a proposed strategy for litigation. At first
blush, this kind of evaluation appears to go far beyond the "supporting role"
of a mere brief writer and suggests that Martin and Muller-Peterson had a

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more significant role in directing the litigation. In light of Bowling's repeated
assertions that he conducted his own evaluation of the facts of the case and
the applicable law, and that he alone has been fully responsible for the
representation of the Plaintiff throughout the course of this litigation, however,
the Court does not find the evaluation of this case by non-admitted attorneys
to be improper. Because Bowling retained Martin and Muller-Peterson for the
limited purpose of providing brief writing services, and the record reflects that
Martin and Muller-Peterson did not engage in any direct representation of the
Plaintiff, the Court concludes that the Plaintiff may recover a reasonable fee
for their services, despite the fact that they have not been admitted to practice
before this Court.
Having determined that the Plaintiff is entitled to recover attorney’s fees
for the work performed by Bowling, Martin, and Muller-Peterson, the Court
must now determine what would constitute a reasonable award. With respect
to the Plaintiff’s request for an award of attorney’s under the EAJA, the parties
agree that the sum of $6,812.12 should be paid by the Social Security
Administration to the Plaintiff’s counsel, as assignee of the Plaintiff, as full
settlement in satisfaction of any and all claims for attorney’s fees under the
EAJA.

[Docs. 21, 32].

The parties further agree that a reasonable fee

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pursuant to the Social Security Act, 42 U.S.C. § 406(b), in connection with
services performed before this Court, is the sum of $8,709.75. [Docs. 26, 30].
The Court has reviewed the parties’ submissions and has determined that the
agreed-to sum of $6,812.12 is a reasonable fee pursuant to the EAJA and that
the agreed-to sum of $8,709.75 is a reasonable fee pursuant to 42 U.S.C. §
406(b).
Finally, the parties acknowledge that pursuant to the United States
Supreme Court’s ruling in Astrue v. Ratliff, 130 S.Ct. 2521, 2526-27, 177
L.Ed.2d 91 (2010), an award of fees under EAJA is payable only to the
Plaintiff as the prevailing party and is thus subject to offset through the
Treasury Department’s Offset Program to satisfy any pre-existing debt Plaintiff
may owe to the federal government. Nevertheless, the Plaintiff requests that
the EAJA award be paid directly to his counsel as his assignee pursuant to
the parties’ Fee Agreement. [Doc. 21]. The Commissioner indicates that he
is willing to accept Plaintiff’s assignment of such fees to counsel, so long as
it is determined that as of the date of this Order, the Plaintiff owes no debt to
the Government that would be subject to offset. [Doc. 32]. The Court finds
that this arrangement sufficiently harmonizes Plaintiff’s request to honor his
assignment with the ruling in Ratliff.

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ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Attorney’s
Fees under the Equal Access to Justice Act [Doc. 21] is hereby GRANTED,
and the Plaintiff is hereby awarded attorney’s fees in the amount of $6,812.12,
which sum is in full satisfaction of any and all claims by the Plaintiff in this
case pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Attorney’s
Fees under the Social Security Act [Doc. 26] is hereby GRANTED, and
Plaintiff’s counsel Russell R. Bowling is hereby awarded attorney’s fees in the
amount of $8,709.75 pursuant to 42 U.S.C. § 406(b).
IT IS FURTHER ORDERED that Plaintiff’s counsel must refund to the
Plaintiff the lesser of the EAJA fees which have been paid and received or the
fees received pursuant to 42 U.S.C. § 406(b).
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 than thirty (30) days from entry of
this Order. Within the same time period, the Plaintiff shall provide any valid
fee assignment to the Commissioner.

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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 SO ORDERED.
Signed: February 6, 2012

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