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concluding that Mr. Martin and Ms. Naides' disregard of pro hac vice admission requirements and practicing before the court without seeking admission to the bar renders an award of fees under the EAJA unjust and denying their request for award of fees
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C/A No.: 6:08-546-GRA.
November 24, 2009
ORDER (Written Opinion)
Plaintiff's attorney, Paul T. McChesney, ("Petitioner") petitions this Court for an award of attorney's fees in the above-captioned case pursuant to the Equal Access to Justice Act ("EAJA"). Petitioner seeks $6,661.57 in fees. Defendant Commissioner of Social Security ("the Government") objects to an award of attorney's fees, or in the alternative, seeks a reduction of the fee amount. For the reasons discussed herein, Petitioner is awarded $987.22 in fees under the EAJA.
Petitioner also asks the Court to direct the Government to allow thirty (30) days after service of the notice of the past due benefit amount to file her petition for fees under 42 U.S.C. § 406(b). The Government does not object to this request and it is therefore granted. See Local Civil Rule 83.VII.07(A) (providing a 60-day period after issuance of the award notice to petition for attorney's fees).
Background
Plaintiff brought this action pursuant to 42 U.S.C. 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act. In a Report and Recommendation filed on May 8, 2009, Magistrate Judge William M. Catoe recommended that the Commissioner's decision be reversed, and that the case be remanded to the Commissioner for further proceedings. The Government did not file any objections. In an order filed on May 22, 2009, this Court adopted the magistrate's recommendation and reversed the Commissioner's decision denying benefits under sentence four of § 405(g) and remanded the action to the Commissioner.On August 26, 2009, Petitioner filed a Motion for Attorney's Fees under the EAJA seeking $6,661.57 in fees for 38.80 hours of work at $171.69 per hour. This amount represents work performed by three attorneys: (1) Petitioner, an attorney licensed in the State of South Carolina, performed 5.75 hours of work for a total of $987.22; (2) Charles L. Martin, an attorney licensed in Georgia but not South Carolina, performed 8.55 hours of work for a total of $1,467.95; and (3) Perrie H. Naides, an attorney who works for Mr. Martin and is licensed in Pennsylvania but not South Carolina, performed 24.50 hours of work for a total of $4,206.40.
On September 14, 2009, the Government filed a Response to Petitioner's Motion. The Government objects to awarding attorney's fees in this case because it contends the Government's position in defending the case was substantially justified. In the alternative, the Government requests that attorney's fees be awarded in an amount less than that requested by Petitioner. On September 24, 2009, Petitioner filed a Reply to the Government's Response. Petitioner argues that attorney's fees are appropriate because the Government failed to carry the burden of showing that it was substantially justified with respect to all of its positions. Additionally, Petitioner argues that the fee amount is reasonable.
Discussion
Although the Government's position was not substantially justified, a reduction of fees is appropriate.
A. Government's Position Was Not Substantially Justified
The Government first objects to an award of fees because it claims its position in the litigation was substantially justified. In the Report and Recommendation adopted by this Court, the magistrate concluded the following: the Administrative Law Judge ("ALJ") failed to properly weigh the opinion of several treating physicians; the ALJ failed to explain how Plaintiff's obesity affected her residual functional capacity; the ALJ discredited Plaintiff's subjective complaints solely because of contrary medical findings; and the Appeals Council failed to articulate reasons for finding that additional evidence did not form a basis for changing the ALJ's decision.
The United States Court of Appeals for the Fourth Circuit has instructed that "the government's position in the district court normally would be substantially justified if, as is usual, the United States attorney does no more than rely on an arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir. 1983). Substantial justification accordingly requires justification to "a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Government's position must have had "a reasonable basis both in law and fact." Smith v. Heckler, 739 F.2d 144, 146 (4th Cir. 1984); see Pierce, 487 U.S. at 565.
In support of its contention that its position was substantially justified, the Government makes several arguments.
I. Treating Physicians
The Government argues it was reasonable for the ALJ to discount the opinions of two treating orthopedic surgeons and one examiner because the doctors' conclusions stood "in direct contrast to their own treatment notes. . . ." (Def.'s Resp. at 3, Dkt. No. 34.) The Government contends that a physician's opinion may be accorded significantly less weight when not supported by clinical evidence.
Although a treating physician's opinion may be given less weight in some rare circumstances, the ALJ gave virtually no weight at all to the opinions of three treating physicians. ( See Mag.'s Rep. and Rec. at 16, Dkt. No. 26.) Additionally, the physicians' opinions were not inconsistent with other substantial evidence in the case, and therefore their opinions should have been given far greater, if not controlling, weight. See Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). For example, one physician noted Plaintiff complained of leg problems. Although her xrays were normal, a nerve conduction study showed findings that matched Plaintiff's symptoms. Still, the ALJ cited only the normal x-rays and ignored the evidence that supported her pain. ( See Mag.'s Rep. and Rec. at 16, Dkt. No. 26.) The Government's position was not substantially justified because it was unreasonable for the ALJ to discount the opinions of the treating physicians.
II. Obesity
The Government argues that because the ALJ found that Plaintiff's obesity was a "severe" impairment, it was reasonable for the ALJ to find that Plaintiff's combination of impairments limited her to light work with a sit or stand option. The Government further argues that it was substantially justified because the ALJ explicitly stated that he had considered Plaintiff's obesity when assessing her residual functional capacity.
As the magistrate pointed out, the ALJ merely claimed he considered Plaintiff's obesity in determining his assessment. "[H]e failed to provide any explanation as to how this severe impairment factored into his assessment." (Mag.'s Rep. and Rec. at 21, Dkt. No. 26.) Given this utter lack of explanation, the Government was not substantially justified in taking the position that the ALJ properly executed his duties with regard to assessing Plaintiff's obesity. See Soc. Sec. Rul. 02-01p, 2000 WL 628049, at *7 (Sept. 12, 2002).
III. Plaintiff's Credibility and Evidence Submitted to Appeals Council
The Government argues that it was substantially justified in arguing that the ALJ properly considered Plaintiff's subjective complaints and that the Appeals Council properly considered additional evidence submitted by Plaintiff. Although the Government's position on these issues was slightly more defensible, it is telling that the Government failed to file any objections to the Magistrate's Report and Recommendation, which completely contradicted the Government's assertions.
However, this Court need not further discuss whether the Government was substantially justified as to these two issues. It is enough that they were not substantially justified in arguing that the ALJ properly considered the opinions of the treating physicians and that the ALJ properly considered Plaintiff's obesity. "The [G]overnment's burden of showing substantial justification is a strong one and is not met merely because the Government produces 'some evidence' in support of its position." Hurell v. Barnhart, 444 F. Supp. 2d 574, 576 (D.S.C. 2006) (citing Petrella v. Sec. of Health and Human Servs., 654 F. Supp. 174 (M.D. Pa. 1987)). Therefore, after thoroughly reviewing the record, this Court finds the Government's position was not reasonably based in law and fact, and an award of attorney's fees is proper in this matter.
B. Fee Reduction is Appropriate
The Government also objects to the requested amount of attorney's fees. Specifically, the Government contends that Petitioner should not be compensated for the time spent by Mr. Martin, and his subordinate Ms. Naides, because neither attorney is licensed to practice law in this state, neither attorney filed an application for pro hac vice admission, and both attorneys have been repeatedly cautioned by courts in this District to apply for pro hac vice admission before petitioning courts in this District for fees.
The EAJA provides a mechanism for a plaintiff to recover her attorney's fees when the plaintiff prevails in a lawsuit against the United States Government. 28 U.S.C. § 2412(d)(1)(A). The statute specifically provides that the court "shall" award these costs "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id. (emphasis added). In this case, it would be unjust to award fees based on the work of Mr. Martin's firm.
In at least four cases since May 2008, courts in this District have cautioned Mr. Martin against continuing to represent clients in the District of South Carolina without applying for pro hac vice admission in this District. In Tadlock v. Comm'r of Soc. Sec., No. 8:06-3610-RBH (D.S.C. April 9, 2009), and Thompson v. Comm'r of Soc. Sec., No. 0:07-1424-RBH (D.S.C. May 12, 2009), the Honorable R. Bryan Harwell awarded fees for Mr. Martin's and Ms. Naides's work but advised that "in future cases before this Court, the plaintiff's South Carolina counsel should petition the Court for admission pro hac vice for any out-of-state counsel for whom he intends to petition for attorney's fees." Tadlock at 4, Thompson at 3-4. In Freeman v. Astrue, No. 0:06-02255-TLW-BM (D.S.C. July 24, 2008), the Honorable Terry L. Wooten stated that it "may consider reducing the rate of out of state counsel" if Mr. Martin did not file pro hac vice motions in the future. Id. at 2. And in Pace v. Astrue, No. 9:07-00546-SB (D.S.C. May 9, 2008), the Honorable Sol Blatt "strongly recommend[ed] that counsel who are engaged in the preparation of briefs on behalf of a client and who hold themselves out as representing that client apply for pro hac vice admission." Id. at 2. All of these warnings came well before Petitioner filed the current Motion for Attorney's Fees, but Mr. Martin and his associate chose to ignore these repeated warnings and proceed without obtaining pro hac vice admission.
Recently, in Mortensen v. v. Comm'r of Soc. Sec., No. 8:07-547-JFA (D.S.C. July 29, 2009), the Honorable Joseph F. Anderson, in what this Court considers to be a thorough and well-reasoned opinion, denied attorney's fees for Mr. Martin and Ms. Naides. Judge Anderson pointed out that Mr. Martin has filed briefs for plaintiffs in at least fifty-eight cases in this district, all involving Petitioner as counsel of record.
Forty-five of these cases have come in the last five years. In all of these cases, attorney Martin either signed court documents as "attorney for plaintiff," filed affidavits in support of requests for attorney's fees attesting that he was "counsel for the plaintiff in the above-entitled action" and that he "represented" the plaintiff before the district court, or both.Mortensen at 3. Judge Anderson found that Mr. Martin was using a "hybrid form of representation" and avoiding the liability of licensure while reaping the benefits of representing clients. Id. at 5. "If attorney Martin's practice involves representing clients in this court, he ought to be licensed to do so."
On July 29, 2009, Judge Anderson entered one Order on Motion for Attorney's Fees in three cases: Mortensen v. v. Comm'r of Soc. Sec., No. 8:07-547-JFA, Davis v. Comm'r of Soc. Sec., No. 2:07-1621-JFA, and Peter v. v. Comm'r of Soc. Sec., No. 3:07-3785-JFA. This opinion is attached to this Order.
Petitioner claims that most decisions in this District reject Judge Anderson's reasoning. However, none of the cases cited by Petitioner squarely address this issue. In one of the cases cited by Petitioner, Clowney v. Comm'r of Soc. Sec., 8:07-856-CMC (D.S.C. Sept. 15, 2008), the Honorable Cameron McGowan Currie held that the use of contract attorneys who are not admitted to practice before this court did not preclude recovery of attorney's fees at an attorney's rate. This Court agrees that as a general rule, contract attorneys may recover attorney's fees at an attorney's rate. However, here the Court is dealing with a law firm with continuous and long-term connections with this District.
This Court has found one case that has awarded attorney's fees to Mr. Martin in light of similar objections by the Government. In Alverson v. Comm'r of Soc. Sec., No. 2:08-3092-CMC (D.S.C. October 6, 2009), Judge Currie granted an award of attorney's fees to Mr. Martin and Ms. Naides, and distinguished her ruling from Judge Anderson's holding in Mortensen. Judge Currie based her decision, in part, on Mr. Martin's and Ms. Naides's declarations that they provide only brief writing services. Alverson, at 3. However, Judge Currie noted that she "remain[ed] concerned with [Petitioner's] extensive use of non-admitted attorneys, particularly in light of the various orders [cautioning Mr. Martin]." Id.
This Court shares Judge Currie's concerns, and finds Judge Anderson's analysis in Mortensen instructive in evaluating the case at bar. In this case, like Mortensen, Mr. Martin signed both Plaintiff's Brief and Reply Brief as "Attorney for Plaintiff." In the affidavit attached to Petitioner's Motion for Attorney's Fees, Mr. Martin titled the document "Affidavit of Counsel for the Plaintiff." Both Mr. Martin and Ms. Naides signed their affidavits as "Attorney for Plaintiff."
Mr. Martin and Ms. Naides appear to have changed the language in the body of their standard affidavits in these types of cases to remove declarations that they represent a specific plaintiff. They now explain that they merely provide brief writing services for Petitioner. This appears to be a distinction without much of a difference. Of the 38.80 attorney hours logged in this case by Plaintiff's counsel, eighty-five percent of that time was logged by Mr. Martin or Ms. Naides. Moreover, Mr. Martin, and in some instances Ms. Naides, still signed the briefs and affidavits in this case as attorneys for plaintiff. But by not applying for pro hac vice admission these attorneys were never licensed to represent any plaintiff before this Court.
It is also important to examine the context in which this case arises. Mr. Martin and his associates do a significant amount of legal work in this state. In Social Security disability cases, especially as they proceed through the district courts, the gravamen of the case is litigated by way of briefings. In many of the cases in which Mr. Martin's firm provides "assistance," it is actually providing the vast majority of the effort. Yet by hiding behind the label "contract attorneys" Mr. Martin and his associates avoid much of the liability. Consider the repeated admonishments from courts in this District that Mr. Martin's firm refrain from its extensive work in this state without its associates first obtaining some form of licensure. Mr. Martin and his associates have been able to flatly ignore these warnings because of the very reason they were issued: this Court has limited power over Mr. Martin's extensive, yet unlicensed practice before this Court. As Judge Anderson explained in Mortensen:
However, the question, as the court sees it, is whether the court is required to compensate an unlicensed attorney who improperly represents clients in this district as if the attorney were licensed to practice law in this district. The court finds that public policy commands this answer to be "no." The EAJA requires that an attorney's fee be reasonable and that it be awarded "based upon prevailing market rates for the kind and quality of services furnished." [28 U.S.C.] § 2412(d)(2)(A). Public policy commands that there be no market for attorneys' services which flout a jurisdiction's licensure rules.Mortensen, at 8-9.
Accordingly, the special circumstances of Mr. Martin's work in this case make the requested award of attorney's fees for Mr. Martin and Ms. Naides unjust. See 28 U.S.C. § 2412(d)(1)(A).
Conclusion
After thoroughly reviewing the record in this case, the Court finds the Government's position was not reasonably based in law and fact, and an award of attorney's fees is proper in this matter. However, given Mr. Martin's extensive practice in this District, coupled with the repeated warnings by several federal judges in this District to Mr. Martin's firm about practicing in South Carolina without obtaining pro hac vice admission, this Court will reduce the award so as to only compensate Petitioner.IT IS THEREFORE ORDERED that Plaintiff's attorney, Paul Townsend McChesney, be awarded nine hundred and eighty-seven dollars and twenty-two cents ($987.22) in attorney's fees and costs pursuant to 28 U.S.C. § 2412.
IT IS SO ORDERED.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Thomas Mortenson, ) C/A No. 8:07-547-JFA ) Plaintiff, ) v. ) Jo Anne B. Barnhart, Commissioner ) of Social Security, ) ) Defendant. ) ) __________________________________ ) ) Zella Davis, ) C/A No. 2:07-1621-JFA ) Plaintiff, ) v. ) ) Social Security Administration ) Commissioner, ) ) Defendant. ) ) __________________________________ ) ) Barbara Peter, ) C/A No. 3:07-3785-JFA ) Plaintiff, ) v. ) ) Michael J. Astrue, Commissioner ) of Social Security, ) ) Defendant. )ORDER ON MOTIONS FOR ATTORNEY'S FEES
JOSEPH ANDERSON JR., District JudgeThese three cases come before the court on motions for attorney's fees under the Equal Access to Justice Act and the Social Security Act. Though the motions differ in some respects, there is one issue common to all of them: in each motion, a plaintiff seeks to recover attorney's fees for legal work performed by an attorney who is not licensed to practice law in the District of South Carolina. This order first addresses the issue of fees for the work of unlicensed attorneys and then addresses the three cases in individual detail.
The three cases currently before the court are in an area of the law colloquially known as social security disability. Plaintiffs in these types of cases must initially seek social security benefits through an administrative process in the Social Security Administration. Unsuccessful litigants may appeal the administrative decision to the United States District Court pursuant to 42 U.S.C. § 405(g). In such an appeal, the district court reviews the record from the administrative proceedings together with briefing from the plaintiff and the social security commissioner.
Attorney Charles L. Martin, a member of the bar of the State of Georgia, specializes in social security law. Attorney Martin's specialty includes assisting plaintiffs with social security appeals in federal district courts. According to the affidavits filed in support of the three motions for attorney's fees, attorney Martin's role in the three cases currently before the court was to assist in the appeals of adverse rulings his clients received at the administrative level.
Since 2003, attorney Martin has been a fixture in this district. Though he has not filed a formal appearance as counsel of record in any case in this time period, he has filed briefs for plaintiffs in fifty-eight cases in this district. Forty-five of these cases have come in the last five years. In all of these cases, attorney Martin either signed court documents as "attorney for plaintiff," filed affidavits in support of requests for attorney's fees attesting that he was "counsel for the plaintiff in the above-entitled action" and that he "represented" the plaintiff before the district court, or both. These cases are listed in Attachment A to this order. In each case, an attorney licensed in this district also signed the court documents. In fact, each of the fifty-eight cases involved the same attorney licensed in this district: attorney Paul T. McChesney of Spartanburg.
In the cases in this district where attorney McChesney and attorney Martin have worked together, the case begins by attorney McChesney handling the plaintiff's administrative case before the Social Security Commission. Should the plaintiff wish to appeal the commissioner's decision, attorney McChesney files the appeal in the district court. When it comes time to brief the issues for the district court's review, a subordinate in attorney Martin's office — either an attorney or a paralegal — does the lion's share of the work. Attorney Martin then reviews the work-product, as does attorney McChesney. Should a plaintiff win the appeal in the district court, the motion for attorney's fees which follows outlines a distribution of work along the following lines: attorney McChesney averages about four to seven hours of work on the usual appeal; attorney Martin, about seven to twelve hours; and a subordinate attorney or paralegal, about twenty to thirty hours. In his requests for attorney's fees, attorney Martin requests that he and his subordinate attorneys be compensated at the same rate as attorney McChesney, and that his legal support staff be compensated at a lower rate.
The common question presented in these cases is how to compensate attorney Martin and any subordinate attorneys in his office for their time spent in the three cases currently before the court. The court sees fit to divide this single inquiry into two. First, the court must determine whether these attorneys have acted inappropriately in light of their not being licensed to practice law in this district. If the answer to this question is "yes," the court must determine whether it possesses the authority to reduce (or eliminate) these attorneys' fees.
On the first question, the court finds that attorney Martin has not acted appropriately in these cases. Attorney Martin was listed on the briefs in all of the cases as "attorney for plaintiff," and he signed the briefing in two of the cases. In each of the cases, attorney Martin's affidavit in support of the fees he requests lists him as an attorney for each plaintiff and sets forth time he spent, in his words, "representing [a plaintiff] before the District Court." The same is true for the actions of subordinate attorneys in attorney Martin's office when they have worked on cases. The problem with these actions is that neither attorney Martin nor any attorney in his office represented any plaintiff before this court — they were never licensed to do so. These attorneys instead acted as support attorneys whose office did the lion's share of the work once attorney McChesney's cases reached the appeals stage.
The question, as the court sees it, is whether attorney Martin should be compensated at the same rate as a plaintiff's attorney of record when attorney Martin, though he no doubt provided valuable and skillful work, is not licensed to practice law in this district. The court has outlined why attorney Martin's attestation to having represented each plaintiff "before this court" is not accurate. This inaccuracy, coupled with attorney Martin's history of repeatedly seeking attorney's fees for "representing" South Carolina plaintiffs, leads the court to the conclusion that attorney Martin is improperly seeking to evade the court's licensure requirements. Stated simply, it appears attorney Martin is using a hybrid form of representation as a sword for attorney's fees and a shield to avoid the court's licensure requirement. If attorney Martin's practice involves representing clients in this court, he ought to be licensed to do so.
The court is aware that three decisions in this district and one decision from the Middle District of Florida do not reach this same conclusion, but the court is convinced that its conclusion is sound. While not going as far as this order does, two of the three decisions from this district, those reached in Pace v. Commissioner, 9:07-546-SB, and Freeman v. Barnhart, 0:06-2255-TLW, expressed at least limited uneasiness at the issues posed by attorney Martin's conduct. The decision from the Middle District of Florida, that in Yonce v. Commissioner, 6:05-1416-Orl-KRS, is inopposite. Rejecting the argument that attorney Martin might be abusing the right to appear specially in that district by appearing sixteen times in the past ten years, that court noted that attorney Martin had appeared in only one other case in the district that year. Attorney Martin's history in the District of South Carolina is far more extensive. In this court's view, a review of that history compels the conclusion that attorney Martin is improperly seeking the benefits of representing clients in this district without being licensed to do so. The third decision from this district, that in Clowney v. Commissioner, 8:07-856-CMC, will be discussed in the portion of this order related to the court's authority to reduce the attorney's fees.
In reaching its conclusion, the court notes the following: First, the authority to regulate the practice of law in this district is the District Court's, and the practice of law in the District of South Carolina is not necessarily the same as the practice of law in the State of South Carolina. In re G.L.S., 745 F.2d 856, 859 (4th Cir 1984) (citing 28 U.S.C. §§ 1564 and 2071, and Fed.R.Civ.P. 83). Thus, South Carolina's criminal statutes regulating the unauthorized practice of law do not appear to be implicated in this case. The court would be remiss, however, if it failed express curiosity as to the conclusions the Supreme Court of South Carolina might reach if given the opportunity to express its opinion on this arrangement were it to have occurred in the state court system. See In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 422 S.E.2d 123, 125 (S.C. 1992) (inviting declaratory judgments in the Supreme Court of South Carolina's original jurisdiction to determine whether conduct constitutes the unauthorized practice of law).
Second, attorney McChesney is correct in noting that the regulation of the practice of law directly implicates how an attorney structures his law practice. It may well be true that attorney McChesney's clients benefit by his association of experienced out-of-state counsel to handle the brunt of the work on social security appeals. But the benefits his clients receive do not obscure the fact that an attorney must be licensed in this district in order to represent a party in this district.
Third, the court does not see this holding as giving one party a tactical advantage over another. The government's use of attorneys not licensed in this district is beside the point. Those attorneys are not seeking attorney's fees and attesting that they represented a party when they were not licensed to do so. Also, a party may generally have his or her choice of attorneys to secure for representation. That choice is proscribed only by the requirement that the attorney be licensed.
The Equal Access to Justice Act provides a mechanism for a plaintiff to recover his attorney's fees when the plaintiff prevails in a lawsuit against the United States Government. 28 U.S.C. § 2412(d)(1)(A) ("EAJA"). The statute specifically provides that the court "shall" award these costs "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id.
The court believes that it possesses the authority to reduce the fees sought by attorneys who are found to be practicing law in this district without being licensed. Though the court has not found the proposition to be stated directly, courts have considered the question of whether fees for unlicensed counsel should be reduced (or even disallowed), and in each circumstance, the courts have treated their authority to reduce such fees as a given. A recent case from the Ninth Circuit considered this question in the context of a motion for fees made pursuant to the California Labor Code. Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815 (9th Cir. 2009). Like the EAJA, the California Labor code provides an entitlement to "reasonable attorney's fees." See 28 U.S.C. § 2412(d)(2)(A), and Cal. Lab. Code § 218.5. In Natural Resources Defense Council, Inc. v. Winter, a case examining a fee request under the EAJA, the Ninth Circuit viewed the component of an attorney's fee request assigned to a junior attorney favorably when the attorney "reasonably requested lower rates than an attorney of the same seniority who has passed the bar." 543 F.3d 1152, 1161 n. 3 (9th Cir. 2008). The Tenth Circuit, in Dietrich Corporation v. King Resources Company, examined the question in the context of a private contract for fee distribution. 596 F.2d 422 (10th Cir. 1979). The court ultimately treated the unlicensed attorney as "a lawyer whose services in the instant case did not constitute the unauthorized practice of law." Id., at 426. Though the ultimate conclusions in these cases are not the same, the courts in each case expressed the same concerns and undertook the same analysis this court has taken here.
It is true that the EAJA does not make the entitlement to attorney's fees contingent on an attorney's being licensed. However, the question, as the court sees it, is whether the court is required to compensate an unlicensed attorney who improperly represents clients in this district as if the attorney were licensed to practice law in this district. The court finds that public policy commands this answer to be "no." The EAJA requires that an attorney's fee be reasonable and that it be awarded "based upon prevailing market rates for the kind and quality of services furnished." § 2412(d)(2)(A). Public policy commands that there be no market for attorneys' services which flout a jurisdiction's licensure rules.
It is here that the court should address the third decision from this district which discussed the issue; that in Clowney v. Commissioner, 8:07-856-CMC. In that case, the court concluded that the use of contract attorneys who are not admitted to practice before this court did not preclude recovery of attorney's fees at an attorney's rate. This order does not quarrel with that conclusion. In Winterrowd, the Ninth Circuit suggested that two avenues exist by which a court could award attorney's fees to an attorney not licensed to practice law there. Specifically, the court found the authority to award fees if either (1) it was certain that the attorney would have been admitted pro hac vice had he applied, or (2) the unlicensed attorney's conduct did not amount to "appearing" in the jurisdiction where he was not licensed. 556 F.3d at 822-23. In this case, there does not appear to be an argument that attorney Martin's qualifications as an attorney are anything other than excellent. But given attorney Martin's prolonged history in this district and the nature of his continuous contacts herein, the court believes it would be intellectually disingenuous to characterize him as not having "appeared" here. The certainty that he would have been admitted pro hac vice is also in doubt in light of this history.
In fairness to attorney Martin and attorney McChesney, something should be said about the history recorded in the court's electronic case filing and case management system. That system lists attorney McChesney as counsel of record in 169 cases, and only 60 of those reflect the involvement of attorney Martin's office. This is just to say that the court's docket reflects that attorney McChesney has handled numerous cases in this area without attorney Martin's involvement. It is also fair to say, however, that in some of the cases where attorney McChesney appears to have acted without attorney Martin's assistance, the form of the briefs filed strongly suggest the involvement of attorney Martin's office. Compare Plaintiff's Brief [dkt. # 11] in Ellis v. Commissioner, 3:07-3996-CMC, with Plaintiff's Brief [dkt. # 17] in Stisser v. Astrue, 3:07-3032-MBS. It is also worth noting that attorney Martin has appeared as counsel of record in one case in this district since the year 2000. In Ragan v. Apfel, 3:00-3770-DCN, he paid the then-required $75.00 application fee and was admitted pro hac vice.
The court accordingly concludes that it will not compensate attorney Martin's time and the time of the subordinate lawyers in his office in these three cases.
With this background, the court turns to motions presented in these three cases.
I. Mortensen v. Barnhart, 8:07-547-JFA
In this case, the government objects to an award of fees arguing that its position in the litigation was substantially justified.
The Fourth Circuit has instructed that "the government's position in the district court normally would be substantially justified if, as is usual, the United States attorney does no more than rely on an arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir. 1983). In support of its argument that its position was substantially justified, the government points to medical evidence supporting the argument that plaintiff could engage in light work and argues that it was not unreasonable to advocate that this opinion of a specialist should have been given more weight than that of the plaintiff's treating physician. Though this argument and others did not carry the day, the government's position was an arguably defensible one.
The court therefore denies the motion for attorney's fees pursuant to the EAJA in this case. In the event past due benefits are awarded on remand, the plaintiff shall have sixty (60) days from the issuance of the notice of award of benefits to file an application for attorney's fees under the Social Security Act.
II. Davis v. Commissioner, 2:07-1621-JFA
In this case, the government objects to the number of hours billed as excessive, disputes the cost-index used to calculate the rate for attorney's fees, objects to duplication of costs, and objects to compensating attorney McChesney for travel time to and from the hearing before the magistrate judge.
The court does not find there to be substantial duplication of time in the request for fees, nor does the court agree with the government's conclusory allegations that the time submitted is excessive. On the objection relating to the cost-index, the court finds plaintiff's price formulation based on the Consumer Price Index-All Urban Consumers to be proper. The proper hourly rate for attorney time, adjusted for inflation in this case, is $172.46. On the objection related to travel time, other circuits compensate such time at a lower hourly rate. See Cooper v. United States R.R. Ret. Bd., 24 F.3d 1414, 1417 (D.C. Cir. 1994). This court adopt's Cooper's formulation of compensating such time at half of the attorney's hourly rate. See Id.
The court accordingly concludes that plaintiff is entitled to attorney's fees under the EAJA in the amount of $4,543.69. (8.5 hours for attorney McChesney at $172.46 an hour, 7.0 travel hours at $86.23 an hour, and 29.5 paralegal hours at $83.87 per hour). In the event past due benefits are awarded on remand, the plaintiff shall have sixty (60) days from the issuance of the notice of award of benefits to file an application for attorney's fees under the Social Security Act.
III. Peter v. Astrue, 3:07-3785-JFA
The objection raised to the motion for attorney's fees in this case relates to the fact that attorney Martin and the subordinate attorney in his office are not licensed in this district. That objection was addressed at length in the introductory section of this order.
The court accordingly concludes that plaintiff is entitled to attorney's fees under the EAJA in the amount of $838.80. (4.75 hours for attorney McChesney at $176.59 an hour). In the event past due benefits are awarded on remand, the plaintiff shall have sixty (60) days from the issuance of the notice of award of benefits to file an application for attorney's fees under the Social Security Act.
IT IS SO ORDERED.
ATTACHMENT A2009
Mullinax v. Commissioner, 2:09-001-RSC2008
Jackson v. Astrue, 0:08-894-TLW
Meredith v. Commissioner, 2:08-2961-RBH
Alverson v. Commissioner, 2:08-3092-CMC
Lynch v. Commissioner, 3:08-547-JFA
Makupson v. Commissioner, 3:08-3587-TLW
Suber v. Commissioner, 4:08-281-HFF
Duncan v. Astrue, 8:08-2960-HFF
Grindstaff v. Commissioner, 8:08-3367-TLW
Dewalt v. Commissioner, 9:08-3936-HFF
2007
Pettit v. Astrue, 0:07-1777-JFA
Thompson v. Astrue, 0:07-1424-RBH
Davis v. Commissioner, 2:07-1621-JFA
Stisser v. Astrue, 3:07-3032-MBS
Peter v. Astrue, 3:07-3785-JFA
Mortensen v. Barnhart, 8:07-547-JFA
Clowney v. Commissioner, 8:07-856-CMC
Jefferies v. Astrue, 8:07-2867-MBS
Pace v. Commissioner, 9:07-546-SB
Wheelock v. Astrue, 9:07-3786-HMH
2006
Burleson v. Barnhart, 0:06-414-HMH
Moore v. Barnhart, 0:06-3514-HFF
Freeman v. Barnhart, 0:06-2255-TLW
Motts v. Barnhart, 4:06-005-RBH
Rice v. Commissioner, 4:06-2770-GRA
Loftis v. Commissioner, 4:06-3050-TER
Hardy v. Barnhart, 6:06-2324-DCN
Blakely v. Barnhart, 6:06-2397-RBH
Stevenson v. Barnhart, 6:06-3479-MBS
Priestley v. Astrue, 6:08-546-GRA
Martin v. Barnhart, 8:06-003-HFF
Gravely v. Barnhart, 8:06-2352-MBS
Terrio v. Barnhart, 8:06-3049-PMD
Smith v. Commissioner, 8:06-3244-CMC
Tadlock v. Barnhart, 8:06-3610-RBH
Vo v. Commissioner, 9:06-1624-PMD
2005
Arledge v. Barnhart, 0:05-181-DCN
Gilliam v. Barnhart, 0:05-1607-HFF
Seay v. Barnhart, 3:05-1606-TLW
Causey v. Barnhart, 3:05-2025-HMH
Seabolt v. Barnhart, 3:05-2853-PMD
Sellars v. Barnhart, 4:05-1374-RBH
Terrell v. Barnhart, 6:05-2572-JFA
Johnston v. Barnhart, 8:05-178-GRA
Marcum v. Barnhart, 9:05-1610-RBH
2004
Hite v. Barnhart, 0:04-239-DCN
Austin v. Barnhart, 0:04-1557-HFF
Burleson v. Barnhart, 0:04-1996-MJP
Dills v. Barnhart, 0:04-21978-DCN
Habeck v. Barnhart, 8:04-1844-CMC
Allison v. Barnhart, 8:04-22279-CMC
Robinson v. Barnhart, 9:04-1997-GRA
2003
Spiedel v. Barnhart, 0:03-3275-GRA
Reese v. Barnhart, 2:03-2467-MBS
Hughes v. Barnhart, 3:03-2450-RBH
Brown v. Barnhart, 4:03-2466-PMD
Banks v. Barnhart, 8:03-3443-DCN
Smith v. Barnhart, 8:03-3893-CMC