Baugh v. Comissioner, Social Security Administration

Filing 32

ORDER: Adopting Findings and Recommendation 28 . Plaintiff's Motion for Attorney Fees 25 is GRANTED IN PART. Plaintiff's counsel is awarded $8,593.81 in § 406(b) fees, less $5,000.00 in EAJA fees. (See full 3 page Order for details) Signed on 10/5/2011 by Judge Ancer L. Haggerty. (sd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

JOAN BAUGH,

Civil No. 3:08-1237-HU

Plaintiff,
ORDER
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

HAGGERTY, District Judge:
Magistrate Judge Hubel has issued a Findings and Recommendation [28] in this action.
The Magistrate Judge recommends granting in part plaintiff's request for attorney fees. The
Magistrate Judge recommends awarding plaintiff's counsel $8,593.81 in fees pursuant to 42
U.S.C. § 406(b) less the $5,000.00 already awarded pursuant to the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412.
Plaintiff's counsel, Tim Wilborn, filed Objections [30] and [31] to the Findings and
Recommendation and requested that this court award him $17,187.63 in fees. The tenor and
content of counsel's objections are offensive and inappropriate. Counsel's criticisms misinterpret
the Findings and Recommendation and betray an ignorance of the judicial process as practiced in
1 -- ORDER

this District. More importantly, counsel's personal attacks on the professionalism of the
Magistrate Judge and his staff manifest a disrespect for the court that falls woefully short of the
standards and guidelines contained in Local Rule 83-7(a)-(b), and in this court's Statement of
Professionalism.
This court's power to sanction attorneys for violations of local rules and to rein in abusive
conduct is both inherent, and legislatively derived from the court's authority to promulgate rules.
Zambrano v. City of Tustin, 885 F.2d 1473, 1478-79 (9th Cir. 1989); Ready Transp., Inc. v. AAR
Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). The court's "[i]nherent powers derive from the
absolute need of a trial judge to maintain order and preserve the dignity of the court." Zambrano,
885 F.2d at 1478 (citing Cooke v. United States, 267 U.S. 517, 539 (1925)). Before a trial court
can sanction a miscreant attorney, a finding of bad faith is typically required. Id. Here, the court
makes such a finding as there is no benign explanation for counsel's unprofessional and
disrespectful criticisms.
In fashioning an appropriate sanction for counsel's behavior, this court must ensure that
the Federal Rules of Civil Procedure and federal law are not violated, and there "must be a close
connection between the sanctionable conduct and the need to preserve the integrity of the court
docket." Zambrano, 885 F.2d at 1480. The sanction "must also be consistent with principles of
right and justice." Id. (quotation and citation omitted). Because counsel's offensive objections
were filed in pursuit of attorney fees, it would appear appropriate to deny fees altogether.
However, "any sanction must be proportionate to the offense and commensurate with principles
of restraint and dignity inherent in judicial power," and this court has a responsibility to consider
the utility of more moderate penalties. Id. Accordingly, rather than denying fees altogether, this
court strikes the offensive documents from the record, proceeds as if counsel had filed no
2 -- ORDER

objections, and as an additional sanction, limits counsel's award to that recommended by the
Magistrate Judge. Ready Transp., 627 F.3d at 404-05 (recognizing the district court's ability to
both craft appropriate sanctions and strike documents from the record).
The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Civil Procedure 72(b). Because no timely objections remain on the record, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation of the Magistrate.1 Campbell v. U.S. Dist. Ct., 501 F.2d 196 (9th Cir. 1974).
No clear error appears on the face of the record. Accordingly, this court adopts the
Findings and Recommendation. Plaintiff's Motion for Attorney Fees [25] is GRANTED IN
PART. Plaintiff's counsel is awarded $8,593.81 in § 406(b) fees, less $5,000.00 in EAJA fees.
IT IS SO ORDERED.
DATED this 5th day of October, 2011.

/s/ Ancer L. Haggerty
Ancer L. Haggerty
United States District Judge

1

The court acknowledges that a de novo review of the Findings and Recommendation
may have possibly warranted an adjustment in the fee award, had counsel presented his
objections in a professional manner. However, in light of the sanctions imposed, this court
declines to adjust counsel's fee award.
3 -- ORDER