Andria Priestley v. Michael Astrue

DAVIS, Before NIEMEYER and HAMILTON, Judges, and Senior Circuit Judge. Circuit in part, part, Affirmed in vacated proceedings by for further remanded published opinion. Judge NIEMEYER Judge DAVIS opinion, wrote the joined. Judge separate wrote a DAVIS concurring part concurring opinion judgment. Judge Senior separate opinion a HAMILTON wrote concurring part dissenting part. OPINION NIEMEYER, Judge: Circuit plaintiffs pre- The in these three cases appeals court on their vailed Security from the Social Administration’s disability of their claims for bene- denial fits, then, parties, prevailing as filed Equal Access to Justice motions under the (“EAJA”), 2412(d), for Act 28 U.S.C. expenses.” In the mo- “fees and tions, plaintiffs sought reimbursement attorneys Paul T. fees of McChes- ney, attorney, as well as South Carolina attorneys fees of two out-of-state attor- McChesney writing neys, who assisted pleadings the briefs and other submitted Martin, Martin ARGUED: Charles Lee to the district court. Decatur, Jones, Appellants. for Georgia, & granted the mo- Jennings Caughman, Office of the While the district court Marvin Columbia, by McChesney, Attorney, charged tions for the fees United States South Carolina, charged it the motion for the fees Appellee. ON BRIEF: Paul denied they attorneys the out-of-state because McChesney, Spartanburg, T. South Car- Nettles, olina, N. were not licensed to law the Appellants. William Drake, and were not Attorney, Beth First District of South Carolina United States pro hac vice in these cases. Dis- Attorney, Office of admitted Assistant United States ings. prevailing parties, they Local Civil Rule As triet of South Carolina then filed expenses admission motions for fees and authorizes hac vice under the 83.1.05 Priestly sought EAJA. attorneys ap- “for occasional reimbursement of of out-of-state $6,661.57; Peter, $6,083.52; Davis, but not “substitute pearances,” $8,639.62. motions, Supporting of this admission to the Bar regular attorneys, plaintiffs whom included the affidavit at- The out-of-state of their Court.” T. torney, McChesney, Paul McChesney hired to work on the briefs as well as the him with affidavits of out-of-state provided had also Charles these Naides, or, earlier L. Martin and Perrie H. in one assistance in dozens of similar case, Tillett, generally responsi- paralegal work was David cases. Their McChesney the fees who assisted in drafting 75% and 85% of briefs ble for between sought pleadings McChesney’s re- and for and McChesney’s clients review for which motions, filing. plaintiffs The In the the indi- under the EAJA. dis- imbursement spent by McChesney cated that the time trict concluded that the out-of-state a “special roughly lack of accounted for 15% to the licensure was 25% of claimed, that time for which fees were circumstance” made reimbursement and Martin, by Naides, “unjust” spent EAJA. See time of their fees under the and Tillett 2412(d)(1)(A). § accounted for the remainder. 28 U.S.C. plaintiffs contend appeal, On Although McChesney was a South Car- MeChesney’s at- retention of out-of-state attorney, practice olina admitted to law

torneys writing for assistance in brief did both the courts and in State their fees preclude not reimbursement for court, and Martin Naides were not admit- EAJA, under the nor did it violate the State, ted in the nor in the court. rules, of South and District Carolina’s local Martin, Naides, Georgia lawyer, a therefore, they “spe- no argue, there were Pennsylvania lawyer, practice spe- their justify cial circumstances” to denial cialty briefing Social Security appeals attorneys fees. out-of-state firm, Jones, through their though Even the District of Car- South Decatur, Georgia. McChesney retained regulates olina appropriately Martin exper- and Naides because of their court, in its we conclude that the law tise, and these assisted McChes- lawyers nonadmitted writ- use of for brief him ney by providing with research “special ing present services does not drafts of briefs and other filings. Martin deny sufficient a fee circumstance” to spoke McChesney’s and Naides never with “unjust” award as under the EAJA. Ac- clients, opposing They with nor counsel. cordingly, we vacate and remand these submitting, involvement to limited their appli- fee cases for reconsideration of the form, papers, draft briefs and cations. reviewed, edited, signed, then McChesney and filed the court. Martin occa- with was

I sionally on filed listed documents as “attor- Peter, brief,” Priestley, ney or “on on plaintiff’ Andria Barbara for filed, disability papers Zella Davis filed claims for bene- some of the his name was Security accompanied signature. fits with Social Administra- electronic tion, Also, affidavits Security supporting plain- Social Administra- his fees, applications tion denied each of the claims. These tiffs’ Martin stated plaintiffs appealed plain- that he served “counsel for the tiff,” successfully rul- Naides’ challenging agency’s while affidavits stated rate” and reduced the support “paralegal also rate legal “provided she McChesney compensated at which was representation.” support travel time. during his its were not admitted and Naides orders, explained the court that Martin bar and therefore Carolina State the South McChesney long history assisting had a admission the bar of qualify did Security appeals previ- and had Social They suggest also the district court. ously judges been warned other qualify hac vice admis- they did not gain South Carolina admission with McChes- they associated sion because rules, local in one form or court’s satisfy the “occasional ney regularly too other, continuing that work. Mar- before McChesney en- appearance” requirement. violations, found, tin’s contra- of cases over the gaged Martin dozens public policy vened the in favor of since at years least presented “special licensure and thus Security op The of Social Commissioner 2412(d)(1)(A) in 28 circumstance” U.S.C. motions for fees and posed plaintiffs’ fee would render awards for his and Mar expenses, arguing that because “unjust.” work Naides’ tin and Naides were neither licensed orders, From the district court’s which Carolina, vice, pro nor admitted hac South denied, part, for the most their motions for in the they engaged had unauthorized expenses, reimbursement of fees and assisting law practice of when in these Peter, Priestly, ap- these Davis filed The Commissioner claimed that the cases. peals, by which we consolidated order dat- should not be reimbursed for plaintiffs 23, ed March or, all, at alternatively, their work that at a only reimbursement reduced rate.* be II

By separate entered in of orders each us, the cases before the district court their main argument, For the attorneys plaintiffs the that granted motions fees contend the district court that plaintiff sought by invoking “special the extent reim- erred cir EAJA’s exception deny bursement for work cumstances” reimburse McChesney, respect performed by but denied them with ment for work the out-of- performed by attorneys They to reimbursement for work state Naides. they argue because had that the out-of-state work McChesney assisting been admitted to District of not violate any did Carolina, permanently pro South either or local rule of district court and that 10-1176, Davis, however, In public hac vice. No. there no policy against is South grant court did motion for fees for Carolina out-of-state con hiring performed by attorneys work Tillett at tract a lower to assist him in writing * case, 2008). opposed judge The Commissioner has fees for Mar- In another the district rejected argument tin and Naides in numerous other cases in the Commissioner’s but Carolina, of District South based on their admission in recommended vice fu- nonadmission the bar. In a ture "[t]o number of cases avoid confusion over this is- cases, Astrue, (D.S.C. judge allowed sue.” v. fee reim- Pace 9:07-cv-546 9, 2008). May bursement the case before the court but In still attorneys judge argu- that indicated the out-of-state characterized Commissioner's See, request pro unjustified. e.g., completely should hac vice in fu- Stis- admission ment as See, Astrue, Astrue, (D.S.C. e.g., ture cases. Tadlock v. ser Mar. v. No. 3:07-3032 (D.S.C. 9, 2009); Astrue, 2009); Apr. Clowney 8:06-cv-3610 v. Freeman No. 8:07-cv-856 Astrue, (D.S.C. (D.S.C. 2008). July Sept. No. 0:06-cv-2255 justified to the district court’s They point tially special briefs. or that circum- award, rule, parties that provides unjust.” local stances make an represented by 2412(d)(1)(A) added). the district “must (emphasis U.S.C. of Bar least one member of this Court expenses” The term “fees and other motion, dis- sign pleading, who shall each defined to include: covery procedure, or other document expert witnesses, expenses reasonable of Court,” or filed in this D.S.C. Civ. served study, analy- reasonable cost of added), asserting that (emphasis R. 83.1.04 sis, test, engineering report, project requirement the local fulfilled rule’s was which is found to be neces- by McChesney, represented of who each sary preparation for the of the party’s plaintiffs signed all of the papers (The case, and reasonable behalf They filed court on of each. amount of fees awarded this sub- argue that their out-of-state sim- upon section shall be based prevailing ply locally drafted briefs for their admitted quality market rates for the kind and review, edit, sign, and file and furnished, except the services ... this did not involvement violate (ii) attorney fees shall not be awarded in district court’s local rules. per excess hour unless the $125 support argument, further their determines an increase the cost they factor, claim that the district court has a living special or a such as the “long history allowing the arrangement availability limited of qualified attorneys light involved here in the full disclosure involved, proceedings justifies provided, fee.) always has been and award- higher ing attorneys fees for all the [and] involved 2412(d)(2)(A). 28 U.S.C. ... that the court below nev- district itself Congress designed the excep interpreted pro- er before its own rules mandatory tions to the of award fees and lawyers hibit in one kind from of case expenses prevailing parties “safety as a hiring lawyers out-of-state draft valve” that would “insure that the Govern out- permitting briefs—while them to hire ment not advancing deterred from of-state paralegals.” good faith the novel credible but exten argues The the dis- Commissioner that interpretations sions law that of often reasonably trict applied court the EAJA vigorous underlie enforcement efforts” and plaintiffs when it that a concluded used provide that would district courts with “hybrid form representation” of to circum- to deny equita “discretion where awards rules, vent the district court’s local and ble considerations dictate an award should attorneys a provided spe- that such use of Holder, not be made.” Nken v. 385 Fed. cial circumstance to render an of award Cir.2010) 299, (4th Appx. 302 (quoting fees for the out-of-state work 11, 96-1418, H.R.Rep. 1980 unjust. (1980)). 4984, U.S.C.C.A.N. 4990 We thus issue, In resolving begin grant we an district the with review the court’s or denial analysis requirements. attorneys of the EAJA’s The of for reimbursement fees for provides EAJA that district court “shall abuse of discretion. Pierce v. Under See wood, 552, 571, prevailing party 2541, award to a ... U.S. 487 108 S.Ct. fees (1988). party expenses other ... incurred that 101 L.Ed.2d 490 will find We such any against applied civil if district action” the United abuse the court “mistak “clearly the court the legal principles” States “unless finds that en or made erro People of position findings.” the United States was substan- neous factual the for sions, that these attor- Dough- concluding because Animals v. Treatment Ethical of Cir.2001). (4th neys performing legal services F.3d were ney, 263 regular on a basis and South Carolina of The definition “fees broad engaged in the unautho- therefore were indicates, in the EAJA expenses” law, a to them rized of fee award practice doubt, in Congress that much without unjust. would be range of a wide fees to award tended party litiga expenses prevailing reasoning, this we believe relying on of unless one government, with the tion court improperly district linked Thus, the EAJA exceptions applies. of law in practice requirements of fees for the reimbursement authorizes requirements studies, analy conducting doing persons EAJA, limiting scope thus at ses, issuing as well as for reports, or otherwise authorizes. And the EAJA consistent with this torneys fees. And this, up the court effective- doing ended intent, have held that the manifested we ly sanctioning out-of-state authorization for reimbursement statute’s purported violations of local rules its attorneys fees includes authorization denying reimbursement for their fees un- performed not for work reimbursement that the der EAJA. We conclude issues by persons also do only by attorneys but mixed, so at least should not be traditionally performed by an ing “tasks case, they actually of this circumstances and for which the would are matters. separate client,” customarily charge regardless course, was, right- The attorney, paralegal, whether licensed fully about concerned the unauthorized Hyatt law clerk them. law in its and it has Barnhart, (4th 315 F.3d Cir. regulate through local authority 2002); see also Richlin Sec. Serv. Co. v. array of appropriate rules sanc- 571, 581, Chertojf, 553 U.S. S.Ct. determine, (2008) however, tions. need (holding We 170 L.Ed.2d 960 Martin and Naides violated “attorneys includes “fees for whether term fees” services”). or, they did, appro- local if what the rules paralegal be, the vio- priate sanctions would because Accordingly, we have little difficul any, if question, lation in was so attenuated concluding ty in that the EAJA authorizes it and that would not affect the technical for plaintiffs the receive reimbursement plaintiffs’ claims for fee under the awards by attorney, an performed regardless work EAJA, not eligibility which does condition attorney performing the the of whether for on an reimbursement whether practice is or not. We work admitted is admitted. that the EAJA author therefore conclude type izes reimbursement for work the dis- hypothesized by The violation the performed Martin and Naides in assist by the sent and found district court would McChesney and re ing writing with brief showing a that Martin presumably require lated tasks. and court “appeared” Naides authorization or licensure in without court denying

In for reimbursement the work Carolina, the of South such that Naides, District the dis- Martin their work constituted the unauthorized on failure trict relied essence their view, practice law. of this support admitted the local as to be rules relies on Law Dictio- attorneys in dissent Black’s the District South Carolina by at- provi- nary, “[ajppearance which defines or under local rules’ vice pros- expert legal nized in the field of torney” as act of an account- “[a]n ing” legal as a professor of his client. consultant. The ecuting an action on behalf Illinois, was law in practice admitted to in which but filed in court Document Colorado, where the suit was tried. representing a forth fact that he sets itWhen came time for the court to Post, appor- (quoting at 40 to the action.” party costs, tion fees and the law firms (6th request- ed.1990)). Dictionary Black’s Law ed that the professor compensated at that Martin The dissent reasons agreed upon rate. The bankruptcy by virtue of lan- “appeared” below trustee, however, objected, arguing that papers various briefs indicat- guage professor engaged had the unautho- “attorney[s] ing they plain- were practice rized of law Colorado. The brief,” or and thus became “[o]n tiff’ trustee relied on which letters “showed ineligible by operation for reimbursement employed professor] law firms had not [the equitable doctrine “unclean consultant, aas clerk or paralegal, law but Post, hands.” at 25-32. ‘at all ... rather times as a practicing strongly suggests Yet the record lawyer fortiori, a in the area of special- his “appear” and Naides did not before Martin ” ty, liability Dietrich, of accountants.’ Indeed, district court. their role was 596 F.2d at 423. While limited. and Naides quite never objection, sustained trustee’s in court or physically appeared before the reversed, Tenth holding Circuit a brief or judge; they paper never filed to be professor “was entitled treated as a court; they never communicated with lawyer whose ... services did not consti- counsel; they never even commu- opposing tute the unauthorized of law.” Id. plaintiffs; nicated with the their work at 426. It explained: McChesney, was with agreement mem- did, Is what professor] providing [the bar, ber the district court and not with legal services in the of his expertise field they plaintiffs; prepared only through firms, to or law established with papers they drafts of briefs and then appearances no court as an attorney, the McChesney editing, sign- submitted practice of law in Colorado? The cases ing, filing the court. Even opinions and ethics we have seen have though them in- names were sometimes appearances involved either court attorneys on plain- cluded briefs as private counsel for clients or the render- they their tiffs and stated in EAJA affida- ing legal directly to a client they were for plaintiffs, vits lawyer who was not law firm au- brief-writing the nature of their function in practice jurisdiction. thorized to supporting McChesney changed. never always Law firms hired have unlicensed See, Co., e.g., King Corp. Dietrich Res. clerks, paralegals student law per- and (10th Cir.1979). Indeed, F.2d 422 legal sons who have their completed ed- as well McChesney just could have re- awaiting ucation but are admission to an English professor profes- tained law bar, after taking before or a bar writing to him sor assist briefs and fulfilling residency examination or re- as charges paralegal type submitted those quirements. Virtually every lawyer has fees, expectation with a legitimate his served such a situation clients would receive reimbursement. through other attorneys services to or Dietrich, In period prior two Colorado law firms re- for some to his or her own University professor practice tained law at admission to the state where Colorado, “nationally recog- who was a such were rendered. No one one mem- by “at least represented ties be activity unautho- as the this

has treated sign shall li- of the Bar of this Court who law, ber because practice rized responsi- pleading”). remain each alone censed clients, are no court there ble to may unjust compensate to it be While holding attorney, and no appearances licensure, who, proper individuals without an inde- person as unlicensed of the out and, their directly represent clients on be- legal advice. giver pendent half, papers appear file before the Theatres v. Skouras (citing Spanos Id. nothing inequitable there is or “un- Cir.1966)). (2d F.2d Corp., 364 about the supporting clean” role Mar- Bar Association eth- American Quoting actually played tin and Naides these court continued: opinion, ics Dietrich, at 426. See 596 F.2d cases. course, only permitted the individuals violations, Of any, if purported Their to respective states of their and, the laws quite thin local rules would be permitted there would Moreover, law practice most, nature. of a technical as the by the state the acts defined do large- Naides would have been state, in that but there of law practice actions violated notice that their ly without carrying on no ethical barriers are doctrine Accordingly, the the local rules. firm in state by such a each supportable, hands” is not of “unclean person admit- particular as the long so Naides’ work nature of Martin and who, person on is the in that state ted making special be a circumstance cannot firm, vouched for the work behalf unjust in their the EAJA award for work and, client others with the all of the these cases. courts, acts legal did the provides the EAJA reimburse- Because practice of by that state as the defined wheth- persons, for fees incurred ment law. not, attorneys or we believe er licensed in this re- important requirement The must reconsider the that the district court must that the local man spect simply is sure, it of Martin and Naides. To be have the state and must be admitted in nonattor- choose to treat them as could make, responsible and be ability provided support to McChes- neys who lawyer making, decisions for per- to the work ney, similar nature group. attorneys, by other nonadmitted formed modified). (emphasis Id. Surely paralegals. as law clerks or such n asso- if and Naides were summer announced a common- Martin The court thus McChesney’s not ad- operation, prac- unauthorized ciates rule: there is no sense would be practice, their time “an trained mitted of law when individual tice unli- to clients and reimbursable a filter between billable [an] the law acts as client, refusing to consider their add- the EAJA. lay ... and the person censed basis, conclude at least on this we independent profession- work ing exercising court relied on a mistak- and, an officer that the district judgment, importantly, al and there- interpretation of the EAJA subject discipline.” to its en of the local court Accordingly, fore abused its discretion. McChesney “acted as a filter” between Id. Naides, court’s orders the vacate the district Martin and we plaintiffs the and for reconsidera- these cases and remand Security specialists, nonadmitted Social motions for reimburse- plaintiffs’ tion of brief-writing that their as- with the result court expenses. The ment of fees permissible. was likewise See sistance the work of Martin par- should take (requiring R. D.S.C. Civ. 83.1.04 Naides at least the work Cir.2009). of nonattor- that, We cannot conclude neys provided who McChesney support here, in circumstances the district court’s ad- writing justments briefs. But it is also free take of fees for travel time was an their work as falling the class abuse of discretion. See Cooper v. United of attor- Bd., States R.R. ney work for Retirement which admission to the dis- 24 F.3d (D.C.Cir.1994) trict might necessary. be (compensating travel rate). time at a reduced In calculating any fee awards for the In view of our work by Naides, determination to the remand these for an cases district court award for fees charged should determine the prevail- by Naides, we ing not reach market rate for do the services of the kind plaintiffs’ arguments them, provided challenging based the on their training, analysis court’s skill, and application experience; provided that in no “special exception circumstances” may event this rate be less than the rate fee awards under the EAJA. traditionally associates, used summer paralegals, and other nonattorneys per- PART, AFFIRMED IN VACATEDIN Chertojf, See forming legal work. 553 U.S. PART, AND REMANDED FOR FUR- 2007; 128 S.Ct. 28 U.S.C. THER PROCEEDINGS 2412(d)(2)(A).

DAVIS, Circuit Judge, concurring in part and concurring in the judgment: Ill I agree entirely with my Judge friend Plaintiffs also contend that Niemeyer’s unimpeachable statutory anal- Davis, 10-1176, the district court ysis of the EAJA and with the resulting abused its discretion when it reduced conclusion the use of non-admitted rate at which McChesney was compensat contract attorneys perform legal work ed for travel Plaintiffs acknowledge time. security social disability appeals is not a that rate legitimate reductions are when “special circumstance” justifying the with- voluntarily chooses to serve holding attorney’s fees for such work. remotely located clients. But claim they Judge As Niemeyer persuasively demon- case, that in this McChesney’s travel was strates, the district court erred in its im- necessitated out factors of his control. proper intermixing of the requirements for Specifically, “[i]n the District of South lawyer’s appearance before the district Carolina, Social Security cases are as the requirements EAJA; with signed judges rotation to and divisions the two are indeed separate matters. throughout State, without regard Thus, I concur in the judgment vacating jurisdiction in which plaintiff re orders these cases and remanding sides.” Because this rotation scheme was plaintiffs’ reconsideration of motions travel, McChesney’s cause of plain for fees and costs. argue tiffs it was unreasonable to treat it as voluntary subject and thus to a I also respect my Judge friend Hamil- lower rate. argument While might ton’s full-throated defense of the local legitimate one to make to the district rules of the United States District Court court, nonetheless, had broad for the District of South Carolina and of discretion when ruling on fee requests prerogative indeed, duty, brought under the EAJA to weigh judges of that district to enforce those United, argument along See rules, others. including those at ensuring aimed Cox, States v. (4th 575 F.3d 358-59 competence as advocates and 420 law- prompted cases has local Brown v. tise such norms. ethical policing Cf. 780-82, (7th

McGarr, 777, of yers 785-86 in the District South Carolina and 774 F.2d Cir.1985) (discussing the recommendations of District North Carolina to Western Committee, appointed by the Devitt brief-writing of in social retain his services in 1976 to make rec- Burger Justice Chief disability appeals.2 security quality of improve ommendations to all, Some, judges those but courts, imple- and the advocacy in federal districts, objections by face of in the recommendations, of such mentation Security, and in- of Social Commissioner adoption local by courts’ part, voking authority, rules have their local as 2071, 1654;1 rules); §§ see U.S.C. refused, or part, in whole award (authorizing adoption Fed.R.Civ.P. see attorney’s prevailing security social by rules States District of local United per- disability claimants for the work vote” of the district by “majority Courts of his firm by formed Martin members acknowledged I have judges). previously Astrue, legal attorneys. Priestly drives as v. [certain] that “local culture contract (D.S.C. Wix practices,” 6:08-546, Robinson v. Filtration No. 2009 WL 4267076 (4th LLC, 403, 414 599 F.3d Cir. Corp. Astrue, 2009); 24, Nov. Mortenson v. 2010) (Davis, J., concurring), recognize (D.S.C. 8:07-547, 9, Dec. 2009 WL 4676510 certainly in- legal culture” can that “local 2009), ajfd grounds, on other 428 Fed. local This fluence a district court’s rules. (4th 248, Cir. Appx. May 2011 WL 1690068 question poses important case 2011). rejected judges have Other application of those should extent rules argument have recom- Commissioner’s but by legal influenced “local culture.” be mended that Martin seek vice cases, in future in part “[t]o admission specialist security is a social Martin avoid over Pace confusion this issue.” v. disability appeals He is a mem- litigation. (D.S.C. Astrue, 9, 2008); May 9:07-cv-546 Bar, good standing Georgia ber Astrue, v. No. 8:06-cv- see also Tadlock Decatur, maintaining Georgia, offices (D.S.C. 9, 2009); Apr. Freeman v. Atlanta, practices before the outside (D.S.C. Astrue, July 24, No. 0:06-cv-2255 District Court United States 2008). judges Georgia. exper- District of His In still other Northern provides: Security compen- to its entitlement to 1. Section Social Supreme all security disability appeals The Court and courts estab- sation in social may by Congress Act lished from time cases in the Western District of North Car- prescribe the conduct their time rules for Astme, v. olina. See Sneed 2010 WL 5395785 shall be business. Such rules consistent (W.D.N.C. 2010) (staying Dec. consider- Congress with Acts of and rules of attorney's ation of a motion for fees under by procedure prescribed Supreme performed by Martin in EAJA for work social Court. security disability appeals filed Western § 28 U.S.C. 2071. pending the District North Carolina out- provides: Section 1654 here). appeal come of the before us addi- In all courts of the United States the tion, case in States a recent the United Dis- may plead parties and conduct own their as, trict of Florida personally Court Middle District cases counsel courts, respectively, per- firm, lawyers such are rules of found that the in the Martin manage mitted to and conduct causes district, who are not admitted in that should therein. paid paralegal at the rate rather than at 28 U.S.C. 1654. security disability rate in a social Astrue, appeal. Riggins 2011 WL See I that the firm has also encoun- note (M.D.Fla. 27, 2011). challenges May *3 tered from the Commissioner of objec- characterized Commissioner’s work for local attorney McChesney in doz- payment tion to the of fees to prevailing ens of cases over the last years, several in in plaintiffs provided they cases which Martin are not eligible for pro admission unjustified services to local counsel as and vice under District of South Carolina Local 83.1.05, have refused to sustain Commission- Civil Rule pro authorizes Astrue, objection. er’s See v. hac vice Stisser No. admission of “for occa- (D.S.C. 24, 2009); 3:07-3032 Mar. Clowney appearances,” sional but not as a “substi- Astrue, (D.S.C. Sept. regular 8:07-cv-856 tute for admission to the Bar of 2008). say To this chaotic state of this Court.” highly affairs profound is undesirable is Therefore, under reasoning of the understatement. review, orders under the only way for As the lead district opinion (and in these lawyers provide for) paid notes, appeals these specialized the conflict their over brief-writing services to because, EAJA fees arose vigorously attorney as McChesney, or other local attor- (in urged by the neys Carolina, South opposing Commissioner would be for them in part) whole or an award of to be admitted to attorney’s bar the District of prevailing parties fees to South Carolina. security social Consequently, under Lo- disability cal appeals, attorneys 83.1.03, Civil Rule only way for gain his them to associate are not admitted to practice to the bar of admission in the District of the United South States Court for Carolina is for District them to become and, members of District of South Carolina the Bar specifically, of the Su- preme Court of they And, South were not Carolina. admitted hac vice. un- See 402(c)(5) der Rule Barnhart, Mortenson v. South 2009 WL Carolina (“The Appellate Rules, Court only way question, it, the court for as sees them to become members of whether the Bar of attorney Martin should be com- Supreme Court of pensated South Carolina is at the same plaintiffs rate as a pass the South Carolina bar examination. Martin, of record when though he provided no doubt valuable and Put simply, light of the local rules as work, skillful is not licensed to practice law applied by the district judges in these district.”); in this see also Mullinax v. cases, the United States District Court for Astrue, (D.S.C. 768 F.Supp.2d the District of South Carolina does not 2010) (“In at least May four cases since permit provide Martin to legal contractual 2008, courts in this District have cautioned services to McChesney passes unless he against Mr. Martin continuing represent the State of South three-day- Carolina’s clients District South Carolina long bar exam. respect, With in my judg- without applying for pro hac vice ment, admis- under the circumstances of the cases District.”).3 However, sion this us, because before requirement this imposes jour- Martin and his associate have ney to a bridge too far.4 Obviously, purposes 3. appearing system fed- tional prac- admission to courts). Rather, tice before federal properly though eral district Martin is not de- licensed to "unlicensed;” Supreme law scribed general there is no Georgia, Court of he is “non-admitted” to the requirement federal licensure attorneys. federal district court bar District of Note, See Who's Federal Afraid of Uniform South Carolina. Dispelling Court Bar? About Fears Standardiz- ing Regulation Attorneys Admission and I note that because United States Dis- Courts, Federal Legal J. Geo. Ethics 811 trict Court for the Northern District of Geor- (2009) (advocating gia creation of a uniform na- requirement, has a similar forum state see

422 in the of motions context an addition- missioner’s favor passing of requirement

The EAJA: three-day payment examination of fees under the full-length, bar for al a to gaining admission after first years Moreover, objec- the Commissioner’s burdensome, requiring highly is state bar for request tions [to a re- expense. and Such time extensive attorneys] are by non-admitted contract any to discouraging be quirement would analyzed in carefully questionable when expand his or her looking to practitioner application. context of an EAJA fee law) (e.g., immigration specialized practice specialist Bohr is a He concedes that within region geographic an to additional com- security appeals. social Given system.5 the federal court cap on fees— paratively modest EAJA disability Furthermore, security specialists cannot bill social which means federal, practice its entirely significantly higher might than law is at rates knowledge of Carolina requires non-specialists no South would expected be of —it technical unique, highly It law. is also to inter- appear government’s in which can practice specialization area of disability repre- for to be est claimants litigation, only parties all to the benefit by experience sented whose persons including itself. the court them to nec- expertise permits complete essary legal than less time North- Fitzwater of the Judge

District might required. otherwise be When how District of Texas has observed ern actually evaluating pro- intensive potentially works in the Com- time specialization 83.1, problem presented applied highly have deferential "rational N.D. Ga. L.R. might exclusionary the same if the roles of basis” test to examine such here well be McChesney practices they willing Mr. were re- Mr. Martin and have been to in- for, of court exclu- dulge assumptions versed. The existence about motivations of, sionary practices of counsel admission efficacy at and the such rules. See id. reality. longstanding See to their is a "[ajlthough bars (acknowledging 6n. 1181 For, Cordisco, Eligibility Requirements Marie [District the record does not indicate that the on, the Fed- and Restrictions Practice Before require to Arizona] [its of amended local rule (Federal Judicial Center eral District Courts admission bar Arizona as a to state of 1995) p. (reporting 2 that as November requirement bar] admission the federal for report, "Fifty-five nine- the time [of explicit quality purpose ensuring ty-four](59%) federal district courts limit attorney representation, it is well-established attorneys are membership its Bar to who scrutiny permits the court that rational basis of the members of the bar state or territorial justifications to consider conceivable possession which the district court is locat- law”) (alterations enacting the and citation ed.”). http ://www.fjc.gov/public/pdf.nsiy omitted; original). emphasis in (last lookup/0005.pdf/$file/0005.pdf visited persuasiveness However one views the 6, 2011). June why out-of- the assumed reasons offered as to likely competent, state are less to be sure, uniformly 5. To be federal courts have (observing, id. at without citation to see 1181 rejected challenges requirement evidence, authority empirical "the or practice feder- admission to before individual Arizona and standard for admission both attorneys ad- al district courts be limited to may required See, California well exceed that e.g., mitted to the bar of the forum state. states”), Arizona, discipline, more difficult to Gallo U.S. Dist. Court For Dist. of id., point by (9th (sustain- powerfully the case Cir.2003) see raised F.3d 1179 whether, of exclusive at bar area ing imposition even a retroactive of forum- practice, security such as social dis- membership requirement federal bar over con- state ability appeals, exception such brought a limited challenge stitutional requirements applied some of such as that ability who lost in the District his cert, Carolina, denied, Arizona), judges in South see U.S. infra 422-23, (2004). pp. S.Ct. is warranted. 158 L.Ed.2d 982 Courts Questions writ- the wisdom regarding cesses such as research brief example, to adminis- ing compared, application fairness the district’s — is often trative functions—it difficult side, local to one is respectable rules there say attorney that an should have ex- persuasive authority supporting and than he or to pended fewer hours did that proposition attorney’s a local use of that quantify part is excessive. non-admitted contract in social a performed by spe- are When services appeals entirely security appropriate. is cialist, professional exper- person’s Astrue, Rose-Velasquez See v. 2008 WL governor tise can serve as a de facto * (D.Utah 16, at April 2008); 1-2 against fees. And it excessive should Sandoval, 86 F.Supp.2d 604-11.7 In- matter little to the Commissioner wheth- deed, Judge Seymour District and District performed er Weisbrod service himself Judge explicitly have relied Currie on such Bohr, delegated provided it to that authority parting company with their Bohr in fact performed Weisbrod and brethren the District of South Carolina claimed, the services for which fees are awarding and in costs and for work they engage that did not wasteful on such cases Martin. See duplication, expen- and that Bohr’s time Stisser, 3:07-3032-MBS, slip 2; op. at ditures were reasonable. Astrue, Smith v. 2008 WL at *4 Apfel, F.Supp.2d 86 608- Sandoval (D.S.C. Dee.16, 2008); Cloumey, No. 8:07- (N.D.Tex.2000). Similarly, I can dis- cv-856, slip op. at 2 my hope n. 1. It is why no reason Com- compelling cern prevent (by missioner would seek to con- upon the remand of these the fine testing reasonable due payments otherwise judges District of South EAJA) under the a local from give will sympathetic Carolina consider- utilizing brief-writing of an ation reasoning those cases. security expert disability practition- social irony The evident this case should not Judge Niemeyer’s opinion As er. convinc- anyone. adopted by lost on The rules shows, ingly non-admission to the district (as this court mandated the Federal hardly justifies non-payment bar as a court Procedure8) statutory interpretation.6 Appellate matter of Rules of limit the respect, allegation good professional 6. With the dissent's is of moral and character Mr. Martin practice and Ms. have "unclean admitted and is to before the Su- wholly States, hands” is unwarranted. No district preme high- Court of the United judge state, in South Carolina has ever such a said est court of a United another States thing. appeals, States or United (including the district courts for acknowledged 7. It must be that the Guam, Northern Islands, the Northern Mariana and Texas, District of cided, in which Sandoval was de- Islands). Virgin among is "have those districts that Obviously, the Rules Committee understands permissive approach taken a have more and competence practice appel- to before an entry, particularly removed barriers that of to automatically is not late court transferrable to requiring of to the bar the state admission advocacy suggest of trial I do art wherein the district court is located.” See anything contrary. supra pp. also See Note, Legal (citing Ethics at Geo. J. (citing statutory & 419-20 n. 1 basis for the U.S. District Court Northern District authority judges of federal district to control 83.7(a)). Of Texas. LR lawyers practice admission of before their Nevertheless, courts). the disconnectedness 46(a)(1): R.App. See Fed. P. (after all, compensa- evident the claim to here eligible these EAJA tion in cases under the is based An is for admission to appeals solely writing”) "brief bar of a court of if that on is remarkable. 2412(d), (the EAJA), Act 28 U.S.C. to two: to our bar admission barriers (2) therefore, of the district portion mor- this (1) good practice admission Davis’ motion for ruling Court court’s order on United States character. See al Rule LR should be Circuit fees under the EAJA the Fourth Appeals view, Martin, However, because, ad- 46(b). Thus, my who is not affirmed. Mr. in this state court did not abuse its discre- mitted to was of our circuit, concluding special a member bar circum- tion in briefs and then Appellants’ to file that make an award able stances existed us; cases before argue these professional legal appear attorneys’ fees for ineligible Congres- (Attor- for to be he is said attorney but Charles writ- compensation for sionally-mandated Martin) attorney and his subordinate ney with, and under Naides) contract under ing briefs in (Attorney Perrie Naides of, local at- supervisory responsibility unjust, I would also three cases present parties prevailing torneys represent who deny- of the same order portion affirm the Carolina, within the District of South in (Davis), Barbara ing plaintiffs Zella Davis this circuit. (Peter), Priestley Peter and Andria under the (Priestley) attorneys’ such fees legal “local

Manifestly, perquisites in Accordingly, part. I dissent EAJA. Frazier v. their limits. culture” have Cf. 641, 646, 107 Heebe, S.Ct. 482 U.S. (1987) (exercising supervisory L.Ed.2d 557 I. justice” “right and authority applying analysis presented of the issues Proper a local rule of the Eastern to find standard appeal require a full in this consolidated requiring that attor- of Louisiana District that informed account of the relevant facts of the of the neys who were members bar the district court’s exercise discretion in or main- Louisiana either reside State of denying fees at issue. qualify for an office in Louisiana to tain Security Administration After the Social that to the bar of admission disability Security benefits to denied Social irrational”). “unnecessary and One

was Davis, Peter, Priestley (collectively the that limits reasonably conclude those could Plaintiffs), appealed respective each their in these have been exceeded cases.9 prevailed.1 to the district court and denials HAMILTON, Judge, recovery Senior Circuit of attor- Each then moved for dissenting part: EAJA, concurring part neys’ pursuant fees provides part: relevant Davis, that, majority agree I with the prevailing to a court shall award [A] court did not abuse its discre- other than the United States fees party the rate at which tion when it reduced ... incurred McChesney (Attorney expenses and other Paul (other any action than party travel civil McChesney) compensated for was tort), including pro- sounding in Access to Justice cases Equal time under District appeals, while United States Although require I that contract at- ter's would rate,” “attorney Judge torneys paid at an decided Judge Ross Anderson heard and G. upon noted, Niemeyer’s opinion makes clear that appeal. any refer- Priestley’s Unless cases, the district court is remand of these opinion court” in this ence to “the district appropriate to determine an rate. free States District Court for refers to the United the District of South Carolina. Judge Joseph F. 1. United States District and Pe- Anderson heard and decided Davis' judicial agency help review of such would be “at ceedings charge” no extra action, (J.A. 182). brought by against the United Davis. It provided also jurisdiction having States lawyers joint respon- “[associated assume action, the court finds that unless sibility representation.” Id. States was position United Davis’ on opening brief the merits below special substantially justified or reply brief on the merits below de- unjust. circumstances make an award that Attorney clared Martin was “On the 2412(d)(1)(A) (emphasis add- 28 U.S.C. brief,” identified Martin as “At- ed). torney Plaintiff,” gave Georgia his Bar $8,639.62 sought Davis number, his office Georgia, address in his time, EAJA for 35.75 hours of number, telephone office and his office fax hour, per para- and 29.50 hours $172.46 number, (government’s 2); Addendum at legal per time at hour. Of the 35.75 $83.87 Astrue, Davis v. No. 2:07-cv01621-JFA time, McChesney Paul T. hours of (D.S.C. 2008) (Docket January 31, Entry (Attorney McChesney) performed 15.50 12). No. 25 at opening Davis’ brief in hours, Attorney performed while Martin support of her motion attorneys’ fees 20.25 hours. states, under the EAJA part: relevant Attorney McChesney is a member representation “In the of the claimant in Supreme Bar of the Court of South Car- the district court Attorney Charles L. a Bar olina and is member of the spent approximately Martin 20.25 hours court, which Bar “consists of those representing plaintiff before attorneys heretofore admitted and those (J.A. 169). court....” prescribed hereafter admitted as Rule by Local Civil 83.1.01-03.” Local Civil In his affidavit that Attorney Martin eligible Rule 83.I.01DSC. In order to be motion, provided support of Davis’ enti- for admission to the Bar of the district tled “AFFIDAVIT OF COUNSEL FOR must, alia, person a a inter be mem- PLAINTIFF,” THE Attorney Martin at- in good standing ber of the Bar of the tested: Supreme Court South Carolina. Local I am counsel [Davis] above- Rule Attorney Civil 83.I.02DSC. Martin is entitled In representing action. [Davis] a licensed member of the Bar of the Su- before United States District Court preme Georgia, Court but is not a mem- performed I specified on the the Bar of ber of the district court. More- summary. attached time over, Attorney applied Martin never to be case, pro pur- admitted hoc vice in Davis’ (J.A. 176). (in signed He the affidavit 83.I.05DSC, suant to Local Rule enti- Civil form of a handwritten signature) and “Appearances by Attorneys tled not Ad- “Attorney identified himself as for Plain- mitted the District.” Id. (J.A. 178). tiff.” Attorney Martin also gave Georgia Bar his Number and office Notably, although Attorney Davis and summary information. The attached time McChesney agree- had entered into a fee Attorney reflected that Martin provided inception attorney- ment at the of their services, management substantial case relationship, Attorney client Davis and research, agree- performed legal Martin never reviewed all fil- entered into such case, ings in the agreement gave opening ment. Such fee McChes- drafted the ney right “get lawyers reply (“including proofing briefs final case, revision”), help” specified Davis’ but and drafted Davis’ motion for Peter, (J.A. plaintiff before the court....” under the EAJA. fees recovery of (D.S.C. Sept. 179). 3:07-cv-03785-JFA-JRM 2). 2008) (Docket 21-1 In Entry No. $6,083.52 attorneys’ fees sought Peter support of Peter’s motion hours of attor- for 34.45 under the EAJA EAJA, Attorney under the Martin hour. Of the time, per ney at $176.59 affidavit, “AFFIDA- provided an entitled time, McChesney 34.45 hours THE PLAIN- OF COUNSEL FOR VIT hours, Attorney Martin 4.75 performed TIFF,” stating: hours, Attorney 6.70 performed above- I am counsel for [Peter] Attorney hours. 23.00 performed Naides representing action. [Peter] entitled of Martin his a subordinate Naides is District Court before the United States of the Bar of is a member law firm. She specified on the I the services Pennsylvania, but is Supreme Court summary. attached time member of the district regular not a Attorney (in Martin nor Attor- (J.A. 308). Bar. Neither signed the affidavit He to be admitted ney applied signature) and iden- form of handwritten vice in Peter’s case. “Attorney for Plaintiff.” tified himself as (J.A. 310). Bar gave Georgia He also his Attorney McChesney entered

Peter and Number and office information. Id. The inception at the agreement into a fee summary that At- attached time reflected relationship, but Pe- attorney-client their torney provided Martin substantial ease agreement ter never entered into fee services, all management filings reviewed Attorney Naides. (“in- case, in opening drafted the brief contained in the language Similar revision”), cluding proofing final and and Davis and Attor- agreement fee between recovery drafted Peter’s motion for of fees ney McChesney, agreement the fee be- (J.A. 311). under the EAJA. Attorney McChesney pro- tween Peter and attorneys, In motion for support vided: can hire other but Peter’s fees “We 314). (J.A. EAJA, you anything.” Attorney under the Naides Martin won’t cost However, McChesney Peter/Attorney provided attesting affidavit to the fol- agreement language lowing: fee lacks to the effect joint lawyers

that associated assume re- I in provided legal support services sponsibility representation. representation of Barbara C. Peter McChesney, to Paul Townsend lead case, Attorney signed

In Martin Peter’s in plaintiff'appellant counsel for the (in opening brief on merits representing action. above-entitled signature), form of an electronic stated Barbara Peter District C. before the brief,” such brief that he was “On the Court, spent following I amount of “Attorney Plain- identified himself as time: 23.00 hours. number, tiff,” gave Georgia his Bar his (J.A. 312). Attorney signed Georgia, office address his office tele- Naides number, (in number, phone and his office fax affidavit the form of a handwritten 3); (government’s signature) Addendum Peter v. As- and identified herself as “Attor- (J.A. 313). true, ney for Plaintiff.” The same 3:07-cv-03785-JFA-JRM (D.S.C. 2008) (Docket 5, May Entry summary support No. 14 of the time submitted 35). spent by Attorney at time Martin in the case opening support Peter’s brief attorneys’ Attorney her motion under the showed that Naides read the pro- Attorney “spent transcript EAJA states that Martin from the administrative approximately representing ceedings, 6.70 hours drafted the statement brief, opening surprisingly, Attorney facts for Peter’s when Martin draft- research, arguments for in- legal drafted in support Priestley’s ed the brief mo- brief, opening into Peter’s and corporation EAJA, tion for fees under the Attorney revised and edited such brief. Martin changed language his standard $6,661.57 brief,

Priestley sought previously such stating that he and EAJA, for fees under the 38.80 hours of represented plaintiff, Naides to lan- time, per total at hour. $171.69 guage characterizing activity his in the hours, McChesney per- Of these 38.80 “providing case as writing brief hours; Attorney per- formed 5.75 Martin Attorney Paul McChesney” Townsend hours; Attorney formed 8.55 characterizing Attorney activity Naides’ performed 24.50 hours. “reviewing the case as the transcript and Attorney Priestley McChesney en- preparing the statement of the case at agreement inception tered into fee support of Paul McChesney.” Townsend attorney-client relationship, of their but (J.A. 37). brief, In the same Attorney Priestley agree- never entered into fee brief,” Martin states that he is “On the Attorney Attorney ment with Martin or “Attorney identifies himself as for Plain- agreement Naides. The fee between tiff,” gives Georgia his Bar number Priestley Attorney McChesney provid- and other office information. get lawyers help ed: “We can Peter, As he did in Attorney Davis and 50). (J.A. Moreover, charge.” no extra it Martin entitled pro- the affidavit that he lawyers provided assume “[associated vided in support Priestley’s motion for joint responsibility for representation.” attorneys’ fees under the EAJA as “AFFI- Id. DAVIT OF COUNSEL FOR THE Attorney signed the opening (J.A. 44). However, PLAINTIFF.” simi- (in brief on the merits the form of an lar to change Martin’s signature), electronic stated in such briefs description activity of his in the brief in brief,” that he was “On the identified him- support Priestley’s attorneys’ of motion for Plaintiff,” “Attorney gave self as for EAJA, fees under the changed Martin his number, Bar Georgia his his office address language standard affidavit to state: number, in Georgia, telephone his office number, and his office fax (government’s I am an providing writing brief 4); Astrue, Priestly Addendum for Paul McChesney, services Townsend (D.S.C. Sept. 6:08-ev-00546-GRA-WMC [Priestley]. for In support of 2008) (Docket 32). Entry No. 18 at [Attorney McChesney’s] representation exception signa- With the of the electronic [Priestley] of before the United States ture, repeated the same information is in District Court I the services reply brief on the merits. specified on the summary. attached time Notably, by Priestley the time had filed (J.A. 44). (in signed He the affidavit EAJA, her motion for fees under the At- signature) form of a handwritten and iden- torneys Martin and Naides had been cau- “Attorney tified himself as for Plaintiff.” tioned court at least three (J.A. 46). summary, The attached time (in Security disability times other Social for Attorney accounts the time of appeals) against continuing represent Attorney in Naides reflects the clients the United District States Court for the District same division of labor in of South Carolina without as found applying summary for hac vice admission. Not time in Peter. hourly attorneys rate as under the support in of normal

Attorney Naides’ affidavit EAJA fee scheme. attorneys’ fees un- for Priestley’s motion states, part: in relevant EAJA der the present appeal, in in all Of relevance agreed three support provided legal I services awarding attorneys’ government of Andria S. representation under the EAJA for the work of fees Paul Townsend McChes- Priestl[e]y to Attorney Attorneys Martin in Davis and plaintiff/appellant ney, counsel Priestley in Peter and Martin and Naides support action. In the above-entitled unjust, therefore denied at- would be McChesney’s represen- Paul Townsend torney regard fee awards in this under the Priestl[e]y before the tation of Andria S. previously, noted the same dis- EAJA. As Court, following spent I District simultaneously ruled on judge trict court hours. amount of time: 24.50 motions for respective Davis’ and Peter’s (J.A. 48). affi- Attorney signed her EAJA, attorneys’ while a fees under (in signa- a handwritten davit the form of judge subsequently district court different (J.A. 49). ture): “Attorney for Plaintiff.” Priestley’s attorneys’ ruled on motion for Davis, Peter, nor Notably, neither under the EAJA. fees Priestley sought ever fees under Peter, the district court Davis Attorney the time of Martin or EAJA for aptly Attorney Martin as a “fix- described than that Naides at a rate lower of Attor- ture” the United States District Court Indeed, ney McChesney. the record re- for the District of since South Carolina throughout litigation, flects that this (J.A. 224). As the district court sought fees under the EAJA for the time correctly to state: went on Martin and Naides have al- Though appear- he has not filed a formal ways rate been the same as ance as case in counsel record Moreover, Attorney McChesney. for time period, this time he has filed briefs for abundantly clear that the record makes plaintiffs fifty-eight cases this dis- seeking only the Plaintiffs were Forty-five trict. of these cases have by Attorneys rendered fees In all years. come the last five hourly at their Martin and Naides normal cases, attorney these Martin either rate fee as under the EAJA “attorney signed court documents as scheme, opposed to some lesser rate as support plaintiff,” filed affidavits would be awarded for mere behind-the- requests attorney’s attesting services, writing, paralegal scene brief or plaintiff that he was “counsel for the layman services. action” and that he the above-entitled plaintiff “represented” the before the 83.I.05DSC, Citing Local Civil Rule court, district or both. requires attorneys who are not ad- (J.A. 224). The district court listed all practice mitted to before the district court action fifty-eight cases name and civil who appear desire to before the dis- number in an attachment to its order. vice, trict court to be admitted the following The district court next made the government argued attorneys’ fees for fact, findings undisputed: which are Attorneys Martin and Naides should be all, if compensated, hourly at a lower In the cases this district where attorney McChesney attorney Mar- McChesney, position quite rate than a con- trary Attorney Attorney together, to Martin’s tin have the case be- worked attorneys’ gins by attorney McChesney handling Naides’ demand for fees at then- Attorney Attorney duct of Martin and case before administrative plaintiffs Security inextricably Should the Social Commission. Naides as intertwined and the commis- appeal wish to plaintiff equally culpable. decision, attorney McChesney sioner’s upon Based the above factual circum- court. appeal in the district files the stances, applied eq- the district then issues it comes time to brief the When to principles awarding uitable hold review, a court’s subor- for the district attorneys’ requested fees under the EAJA attorney Martin’s office—ei- dinate attorney Attorney time of Martin a attorney paralegal ther an or —does unjust. Attorney Naides would be Attorney lion’s share of the work. reasoning The crux of the court’s work-product, then reviews the Martin follows: attorney McChesney. Should a as does in the district It is true that not appeal win the EAJA does plaintiff court, attorney’s motion for fees attorney’s make the entitlement to fees which follows outlines distribution contingent attorney’s on an li- being along following attorney lines: However, work the question, censed. as the four to McChesney averages about sev- it, court sees is whether the court is appeal; on the usual en hours work required compensate to an unlicensed Martin, seven to twelve attorney about attorney improperly represents who hours; subordinate clients in this as if twenty thirty hours. paralegal, about were licensed to law this 224-25). (J.A. public district. The court finds that pol- icy commands this answer to be “no.” view, Attorney In the district court’s requires attorney’s The EAJA that an history in the District of South Martin’s fee be and that it reasonable be awarded compelled the conclusion that At- Carolina upon prevailing “based market rates for torney improperly sought the bene- the kind and quality services fur- clients before the dis- representing fits of 2412(d)(2)(A). policy nished.” Public licensed to do so. being trict court without commands that there be no market for in an to Local Similarly, obvious reference attorneys’ jurisdic- which flout a pertaining appear- Rule 83.I.05DSC tion’s licensure rules. prac- admitted to ances tice before the district (J.A. 399-400). given Attorney Martin’s court found Priestley filed her motion history prolonged in the district and the EAJA one month after the district therein, his continuous contacts nature of upon court had ruled Davis’ and Peter’s intellectually disingenuous “it would be applications for fees under having ‘appeared’ him characterize as not government opposed EAJA. The (J.A. 230). here.” The district court then attorney’s Priestley fees to award of certainty as to whether stated time of Attorney Martin would be admitted Attorney ground on the same Naides in pro hex vice was also in doubt opposed any it award of fees under the Attorney history. of this Because light Attorney fees of EAJA Attorney is a subordinate in Mar- Naides Attorneys in Martin and Martin Davis and firm herself repeatedly tin’s law held in in pres- Peter. Of relevance representing affidavit as various out via opposed the appeal, government ent Security plaintiffs before the district Social court, awarding Priestley any court attor- the district court treated the con- district

430 rulings these for abuse of discretion. the EAJA for the attor- view fees under

neys’ Underwood, 552, 559, Attorney Attorney Martin Pierce v. 487 U.S. ney time of (1988). neither were ground 2541, Naides on the 101 L.Ed.2d 490 108 S.Ct. Bar of the district of the members view, court did not my In the district for admission neither had filed special abuse its discretion. The circum- and, case, in four cases since vice provision grounded stances of the EAJA is (via 2008, court various May “explicitly in that it directs a equity, such Attorneys Martin had cautioned judges) equitable princi- traditional apply them- continuing to hold and Naides about coun- ples ruling upon application in representing clients feder- selves out as prevailing party.” sel fees United court in South Carolina without al district Land, States v. 27.09 Acres More or of pro hac vice. applying for admission Less, Situated in the Town Harrison Sec., of Thompson v. Comm’r Soc. of Castle, 769, and the Town North 43 F.3d (D.S.C. 2009); 13, May 0:07-1424-RBH (internal (2d Cir.1994) quotation 772 marks Sec., No. 8:06- Tadlock v. Comm’r Soc. omitted). history As the of the legislative (D.S.C. 9, 2009); April Free- 3610-RBH clear, special EAJA makes circum- Astrue, No. 0:06-02255-TLW-BM man v. provision “gives stances the court discre- (D.S.C. 24, 2008); Astrue, July 2 Pace v. at (D.S.C. 2008). deny equitable tion to where con- awards 9,May No. 9:07-00546-SB siderations dictate an award should not be following reasoning Expressly 96-1418, 11, H.R.Rep. No. at made.” 1980 court Davis and Peter re- (1980). U.S.C.C.A.N. The doctrine requests attorneys’ to the fees spect equitable of unclean hands is a traditional Attorney Martin and under EAJA consideration, Mfg. Precision Instrument Naides, Attorney the district court Co., Co. v. Auto. Maint. Mach. 324 U.S. Priestley, Priestley denied 806, 814-15, 993, 65 S.Ct. 89 L.Ed. 1381 requested under the with re- fees EAJA (1945), pervades the theme of which spect Attorney time of jurisprudence “special circumstances” Attorney Naides. EAJA, Transport

under Air Ass’n of II. F.A.A., Canada v. 156 F.3d (D.C.Cir.1998). See, e.g., Oguachuba v. In part, provides relevant the EAJA INS, (2d Cir.1983) (deny- 706 F.2d prevailing that “a court shall award to a ing attorneys’ under the special-cir- party other than the United States fees cumstances-make-an-award-unjust excep- ... expenses and other incurred EAJA, because, tion classic party brought by civil action ... terms, equity prevailing party was without against the ... United States unless the hands). clean The doctrine of unclean ... special finds circumstances applies deny party hands relief when unjust.” make an award 28 U.S.C. 2412(d)(1)(A). Here, party’s there is a close nexus between the denying attor- unethical conduct and the transactions neys’ fees for time Attor- neys upon party seeks relief. re present and Naides Uwimana, (4th 274 F.3d special the district court held that Cir. 2001). “[cjourts Notably, are circumstances made the award attor- concerned neys’ unjust.2 primarily integrity fees for such time We re- with their own er, Notably, any regarding reading, my analysis issues will not for ease implicated Naides are not in Davis. Howev- make this distinction.

431 clean maxim and application (recognizing regulating power of the hands by parties raised though acting even not through majority of apply will of its own motion it.” judges, adopt its district' to and amend (3d Mellon, 873, 269 F.2d Gaudiosi governing rules practice). its Because nei- Cir.1959). Attorney ther Martin nor are members of the Bar of the Supreme that point

The first critical must be Carolina, Court of South neither eligible is of the district court’s support made for admission to the Bar of the district attorneys’ denial of fees under the EAJA court. Local Civil Rule 83.I.02DSC. The Attorneys attorney time of Martin only avenue which they may validly Attorneys and Naides is appear before the district court as attor- parties Naides are the real in interest. neys pursuant is to Local Civil Rule 83.- respective agreements The fee between I.05DSC, entitled “Appearances by Attor- Davis, Peter, Priestley on the one neys District,” not Admitted McChesney on the hand and other hand provides, rule in relevant part: plaintiff each made clear that would attorneys’ any not be liable for the fees of (A) Upon attorney motion of an admit- attorney Attorney McChesney enlist- Court, practice ted to before this any Thus, help ed to the case. while person good who is a member in stand- “ ‘[rightfully, pun- courts are reluctant to ing of the Bar of a United States Dis- ish client for the behavior of his law- trict highest Court and the Bar of the ” CODESCO, yer,’ Dove v. 569 F.2d court of state or the District of (4th Cir.1978), Plaintiffs suffered no appear may permitted Columbia to prejudice rulings challenged from the here. in particular matter association with critical point The second the rec- a member of the Bar of this ... Court no in refusing ord leaves doubt (B) appearance The award fees under the EAJA for pursuant juris- to this Rule shall confer Attorneys time of diction upon any alleged this Court for Naides, equi- the district court invoked the in any misconduct matter related to the doctrine of to protect table unclean hands appearance action for which the is al- integrity majority the court. As the may lowed. The Court revoke admis- opinion acknowledges, ante at sion under this Local Civil Rule its authority regulate prac- courts have discretion. tice of law before them.3 See 28 U.S.C. (A) § (authorizing federal courts to make This Rule is intended allow for regulating appearances by attorneys rules admission occasional 2071(a) them); practice before id. who portion do conduct a substantial (“The Supreme all practices Court and courts estab- of their in this District. It is Congress may lished Act of from regular time not intended to substitute for to time prescribe rules for the conduct of admission to the Bar of this Court. their business. determining Such rules shall be consis- whether admission under Congress tent with Acts and rules of this Rule would violate its pur- intended consider, procedure prescribed pose, may alia, the Court inter title.”); section 2072 of this whether Fed.R.Civ.P. resides South Const, Clause, VI, cl.2; By application Supremacy Sperry art. v. Florida ex rel. Bar, 379, 385, regulate South Carolina law does not Florida 373 U.S. 83 S.Ct. (1963). practice of law district court. U.S. 10 L.Ed.2d 428 in federal so, satisfy to the “occasional ney regularly of the too (and, length if Carolina requirement of Local Civil appearance” which the residence), frequency with Rule 83.I.05DSC. attorney appears in the state’ and feder- state, the pro- in this located al courts Moreover, the district court did attorney’s practice attrib- portion of finding Attorneys in Mar- clearly err Carolina, in filed South to cases utable appeared tin before district and other factors.... court, of an attor- “appearance as the term (emphasis Rule 83.I.05DSC Local Civil ney” found in Local Civil Rule 83.- is added). Latin, permits rule attor- this Rules of I.05DSC. While the Local Civil practice before the to neys not admitted for the the United States District Court before the court appear court to district do not define District of South Carolina vice,” means this “[flor which “pro hac attorney” of an nor “appearance the term purpose.” Black’s particular occasion or attorney conduct give any examples of (7th ed.1999). Dictionary 1227 Law qualifying appearing as before the district (6th Dictionary Black’s Law enforceability Notably, validity ed.1990), routinely rely upon which we Local Rule 83.I.02DSC and of Local Civil persuasive authority, e.g., Mining see En- 83.I.05DSC, at all times relevant Civil Rule Director, OWCP, ergy, Inc. v. 391 F.3d beyond dispute. are present (4th Cir.2004), defines the almost of the United States The Judicial Council by attorney” “[ajppearance identical term Fourth Appeals Circuit Court as: statutorily charged periodically with re- prosecuting all courts An act of an an

viewing the local rules of consistency action on behalf of his client. Document within the Fourth Circuit by the United filed sets prescribed with the rules representing party forth fact that he is a Supreme Court under 28 U.S.C. States 332(d)(4), example, § to the action. § see id.

consistency Federal Rules of Civil with the (6th ed.1990). Dictionary Law Black’s If, during the course of such Procedure. definition, affixing with this Consistent review, of the Fourth the Judicial Council pleading name to a or a brief has been inconsistency a local Circuit finds interpreted by Supreme Court of Ne- court within the Fourth rule of evincing braska as intent to be involved Circuit, “may modify abrogate it or litigation: Because, time rule....” Id. as of the such purpose joining The of resident counsel of the writing, of this the Judicial Council is obvious. It with nonresident counsel neither modified nor Fourth Circuit has is to insure that the nonresident counsel or abrogated Local Civil Rule 83.I.02DSC a counsel in- will be associated with 83.I.05DSC, they “remain Local Civil Rule who is litigation volved knowl- 2071(c)(1). effect,” 28 U.S.C. familiar edgeable and laws By permitting that At- of this state. undisputed practices The record is also pleading name to be affixed to a torneys apply, and Naides did not his 83.I.05DSC, brief, lawyer represents a resident pursuant to Local Rule Civil part this court that he is a appear pro hac vice before the district Indeed, litigation and of record. as the a counsel present cases. be held accounta- majority they they Accordingly, he should acknowledges, suggest litigation ble for the transaction qualified appear pro would not have as if there were no non- they MeChes- the full extent vice because associated with

433 lawyer prevent party using reap A to from courts to counsel. resident resident Thus, to permit wrongdoing). his or her name be benefits of the district should or briefs unless he pleadings affixed to court acted within its discretion in well to be involved in the or she intends applying equitable the doctrine of unclean familiar the actions litigation prevent Attorneys hands to Martin and by nonresident counsel. taken reaping Naides from the benefits of their wrongdoing. own Co., Inc., 214 Honda Motor Emry v. Am. (em- (1983) 786, 435, Neb. 334 N.W.2d analytical One of two fundamental er- added) (internal marks quotation

phasis underlying analysis majori- rors the of the omitted). ty opinion the that the is “belie[f] Attorney Martin nor At- While neither improperly requirements court linked the torney Naides filed a formal document of law the district court stating that he or she was of EAJA, requirements with the thus 1(c) cases, see, present e.g., of record limiting scope the of fees that the EAJA sheet, approved by the JS44 civil cover otherwise' authorizes.” at Ante 416. Not Conference of the United States Judicial surprisingly, legal authority supports no (Rev.03/99), when the record is majority’s belief; indeed, majori- the the whole, including prior the viewed as So- ty Moreover, majority’s cites none. the Security cial cases noted on the district support language belief finds no the of attachment to its order in Davis court’s fact, the Local In Rules or the EAJA. the Peter, certainly engaged each in suffi- open-ended language spe- of the EAJA’s support cient affirmative conduct to cial exception circumstances and the finding court’s factual that each legislative history EAJA’s emphasizing the the district court in a appeared had before exception’s equitable purposes wholly to trigger manner sufficient the need majority’s inconsistent with the belief and vice, pursuant file for admission its related conclusion that the issues of Accordingly, Local Rule 83.I.05DSC. Civil attorneys out-of-state violating the local there is no basis for us to hold the district rules of the district court and the entitle- clearly regard. court erred this United attorneys’ ment to an award fees under Co., Gypsum v. U.S. 333 U.S. States for work of EAJA such (1948) (“A 68 S.Ct. 92 L.Ed. 746 mixed, at “should not be so least ‘clearly finding is erroneous’ when al- case, they actually circumstances of this it, support there though is evidence separate are matters.” Ante at 416. In on reviewing court the entire evidence is conclusion, while the district certain- firm left with the definite and conviction ly authority had the to handle the matters committed.”). that a mistake has been Martin’s and Naides’ miscon- Moreover, had the district court awarded separately ruling duct before it from its on Attorneys requested seeking recovery the Plaintiffs’ motions Naides, the district court attorneys’ fees under the EAJA for their such attorneys reap would have allowed time, persuasive there is no au- of their This is wrongdoing. benefits thority, authority, binding sug- let alone injustice very type doctrine gesting the district abused its prevent unclean hands is meant to handling discretion in the issues simulta- special-circumstanees-make-an- neously as it did. award-unjust exception under the EAJA Uwimana, In eagerness its to ensure Attor- applies. See Re F.3d (doctrine applies neys paid unclean Martin and Naides are for their 810-11 hands Naides, majority represented to each present time in the materially miseharacterizes their court that he or she was an opinion limited,” Second, instances, “quite plaintiff. many cases as present role 416-17, ie., Attorney signed as mere brief writers or briefing permit- ante at Martin lawyers, than once something other briefing stating ted to be filed he was the contrary to their claims before again the plaintiff including an Thus, the as noted herein. district court all of his office contact information and analytical error under- second fundamental Georgia Bar number. In the fee affidavits analysis majority opinion lying the by Attorney submitted Martin in Davis Attorneys majority’s premise that Peter, Attorney Martin declared under only provided Martin and Naides behind- penalty perjury represented he services to Attor- writing the-scenes brief plaintiff before the district court. Attor- addressing the ney McChesney, without ney thing Naides did the same Peter. Attorneys Martin and Naides conduct of Third, in the fee affidavits filed numer- amounting appearances the district previous Attorneys ous Martin and pro admission via a requiring court penalty per- Naides each declared under motion, to Local pursuant vice Civil Rule jury represented that he or she plain- In stark contrast to Plain- 83.I.05DSC. court, tiff before the district such that a appeal tiffs’ characterization on of Attor- pattern well-documented of these attor- ney Attorney Naides’ involve- Martin’s neys’ Local Rule violating conduct exists. ment these cases below as limited inculpatory Because the sources of these writing, behind-the-scenes brief which Attorneys statements are Martin and majority accepted characterization the has themselves, they Naides highly constitute analysis, wholesale and without see ante at probative Attorneys evidence that Martin (“[W]e conclude the use of nonad- appeared and Naides before district lawyers writing mitted for brief services violation of Local Civil Rule 83.- present ‘special does circumstance’ LaConey, I.05DSC. See Roberts v. 375 S.C. deny ‘unjust’ sufficient to fee award as (2007) (in 97, 650 determining S.E.2d EAJA.”), undisputed under the evi- law, practicing whether someone is it is dence their representation reflects active important representations consider court, of the Plaintiffs before the district person activity). makes about his own constituting appearance before the dis- Fourth, the time records reflect that At- trict court (requiring admission via a torney Martin person primar- was the who motion, pursuant hac vice to Local Civil ily managed the cases the Plaintiffs 83.I.05DSC.), cry Rule which is a far from court, before the district moni- including majority’s English professor example, toring reviewing filings. deadlines and all 416-17, at strictly legal see ante and the Fifth, I recognize while that the case for professor consultant role of the law appearance before the district court of At- Co., Corp. King issue Dietrich Res. torney Martin is than that stronger (10th Cir.1979), 596 F.2d 422 bankrupt- Naides, Attorney suggests the record cy upon case majority opinion Attorney agreed Attorney Naides relies, unavailingly see ante at 417. regarding Martin the manner in which First, exception, without in the fee affi- firm their law would handle these Social by Attorneys davits Security agreement logically submitted cases.4 Such Barnhart, example, support 4. For in her affidavit in the EAJA in Tailock v. 8:06-3610- (a plaintiff's attorneys' Judge motion for fees under RBH case listed on Attachment A of content to mere play by analogy concept of were not behind-the- brings into writers, making Attorney actually scene brief who did not conspiracy, civil Rather, conduct culpable improper represent they Plaintiffs. equally Restatement wanted to hold themselves out Attorney Martin. before the Cf (1979) (Persons (Second) Bar, of Torts Concert). attorneys, potential All of facts are fellow Acting in these Social Se- curity repre- with the assertion that Attor- claimants as who inconsistent neys provided only Security and Naides sent Social claimants before court. writing ego brief Professional and the materially distin- motivation to create and McChesney and serve seize commercial majority opinion’s English pro- opportunity obviously play. the were at guish To They permit Attorneys also serve to mate- Martin example. fessor and Naides to rially distinguish Corp., per- Dietrich 596 F.2d obtain court ordered fees for services majority the formed in violation of Local upon at the case Civil Rule 83.I.05DSC, does, profes- majority opinion in which the law as the extensively relies condones, only consulting if not provided legal encourages, at issue the same sor wrongful and did violate local behavior and nullifies services not such local severely undercutting special-eircumstances- rule. rule.5 This Also majority make-an-award-unjust credibility opinion exception under the majority opinion unquestionably applies fact that com- to prevent. EAJA the Plain- pletely ignores posture Finally, the fact that other district respective attorneys’ tiffs’ motions for fees. judges the same district court have pre- themselves, the motions in- Specifically, viously attorney awarded fees under the attachments, abundantly cluding the make Attorneys Martin EAJA and Naides at only seeking clear that the Plaintiffs were hourly full requested attorney their rate is attorneys’ for services rendered fees worthy addressing. example, For at Attorneys Martin and Naides their nor- Astrue, No. Cloumey v. 8:07-856-CMC- hourly mal rate as under the (D.S.C.), BHH United States District scheme, opposed as to some EAJA fee Judge McGowan Cameron Currie awarded lesser rate as would be awarded for brief Attorneys Martin fees under EAJA writing legal by, or other for ex- requested hourly and Naides at their full layman. ample, paralegals (Docket 33) Entry attorney rate. Id. (D.S.C. 2008). In summary, Sept. doing, In when one views the record so whole, crystal rejected picture Judge government’s as a becomes Currie Attorneys argument Martin and that because non-admitted At- clear denying attorneys’ Joseph local district court F. Anderson’s order similar run-of-the-mill Attorneys circuit, see, time of fees for the Local Civil Rule rules this 101— Peter), Attorney and Naides in Davis and DMD; 83.1.E.1-EDNC; Rule Local Civil Lo- penalty perjury that she Naides stated 83.1.D.1-MDNC; cal Civil Rule Local Civil represented plaintiff before 83.1.D.1-WDNC; Rule Local Civil Rule court and that Martin was "lead 83.1.D.1-EDVA; 6.D-WDVA; Local Civil Rule (Docket Entry plaintiff. Id. counsel” for the 83.02-NDWV; Local Civil Local Civil Rule 1) 2, 2008). (May signed at She 20-4 83.6-SDWV; and threatens other run-of- Rule (in signa- affidavit the form of a hand written the-mill local district court rules in our sister ture) "Attorney for Plaintiff.” Id. at 2. see, circuits, e.g., Local Civil Rule 83.1.B- majority’s MDAL; Unfortunately, nullification of Local Civil Rule 83.4.B-SDGA. Local Civil Rule 83.I.05DSC also nullifies attorneys’ prior filing Naides did not seek motions torneys Martin and status, they should not be Priestley, yet hac vice another pro Peter rejecting, In attorney rate. so paid at an judge granted Secu- Social the use Judge “conclude[d] Currie rity disability claimant fees under admitted to attorneys not contract Attorneys EAJA for the time of preclude recov- this court does before Naides, but warned that it rate the contract ery at an where “may reducing consider the rate of out of docu- attorneys merely drafting assisted counsel” if out of state counsel did state (Exhibits to Br. of Opening ments.” not seek hac vice admission in the 12). Peter, Priestley at Davis future, Astrue, Freeman v. No. 0:06- expressly F. Anderson stat- Judge Joseph (Docket 2) Entry 02255-TLW No. 25 quarrel that he did not with this conclu- ed (D.S.C. (3) 24, 2008); July prior However, persuasively he reasoned sion. Priestley filing her motion for attorney’s that when a non-admitted con- fees, judge a third district court twice cau- jurisdiction in the district court’s duct Attorneys tioned Martin and Naides jurisdiction, appearing amounts to against continuing represent clients in required. hac vice admission is More- pro applying the district court without for ad- over, a court decision such as vice, pro Thompson mission v. Comm’r Clowney “which has not the acid withstood (Docket Sec., Soc. No. 0:07-1424-RBH of appellate regard- test of review cannot be 3-4) (D.S.C. 13, Entry May No. at authoritative, much disposi- ed as less 2009); Sec., Tadlock v. Comm’r Soc. ...” Bank Marin v. England, tive. (Docket Entry 8:06-3610-RBH No. 28 at (9th 186, Cir.1965), F.2d 189 n. 1 rev’d on 4) (D.S.C. 2009). 9, April Notably, the 274, grounds, 385 U.S. 87 S.Ct. majority virtually opinion ignores these (1966); 17 L.Edüd 197 see also Jensen v. unambiguous by prior warnings received Conrad, (D.S.C. F.Supp. 106-07 Naides, Attorneys put 1983) March (quoting same from Bank on fair them notice their actions vio- Marin, 1). Finally, 352 F.2d at 189 n. lated Local Civil Rule Relat- 83.I.05DSC. that Clowney provide aid could Attor- that, edly, I neys Martin also note unable to make a equitable and Naides completely clearly calculus is nullified the fol- case that the erred lowing showing pair ample facts had finding that Martin and Naides violated operandi notice their modus in Social 83.I.05DSC, respect Local Civil Rule Security disability cases before the district present to their conduct in the 83.I.05DSC, violated Local Civil Rule majority attempts downplay such find- prior seeking attorneys’ to their fees under ing characterizing the violations as (1) present prior the EAJA the cases: and, most, “quite thin at of a technical filing motions fees nature,” The attempt ante is with- Davis, Peter, Priestley, a different effect, evidence, out because record judge strongly district court recommended herein, amply set forth in detail demon- Attorneys apply and Naides flagrant strates that the violations were they engage hac vice admission if history and followed a well-documented preparation of briefs on behalf of a fifty the same violative behavior in over they repre- client hold themselves out as Security cases in the district court. Social senting in the district Pace v. As- stated, true, (Docket conclusion, for the reasons I Entry No. 9:07-00546-SB 1) (D.S.C. (2) 9, 2008); May No. 35 at 2 n. affirm appealed would the orders in toto. affirm the district I would Specifically, At- rate at which reduction

court’s compensated for McChesney was

torney in Davis and affirm time

travel to award Davis refusal

court’s attorney time under the EAJA and its refusal Attorney Martin Priestley attorneys’ fees Peter and

award time of the EAJA for Martin and Naides.

Attorneys QUESENBERRY;

Mary Paul E. Hol-

landsworth; Viers; E. Curtis Walter Goad; Shirley Cox; K. I.

L. Robert

Tolbert, themselves and on behalf of similarly situated; persons

all other Union, United Automo-

International

bile, Aerospace Agricultural Im- America;

plement United Workers 2069, Plaintiffs-Appel-

Auto Workers

lees, AMERICA NORTH

VOLVO TRUCKS

RETIREE HEALTHCARE BENEFIT America,

PLAN; Group Volvo North

LLC, Defendants-Appellants.

No. 10-1491. Appeals, States Court of

United

Fourth Circuit. Bender, Joseph Thomas ARGUED: May 2011. Argued: Hank, Littler Matthew John Mendelson July Decided: PC, Philadelphia, Pennsylvania, Appel- Clark, Penny lants. Bredhoff & Kai- Julia ser, PLLC, D.C., Washington, Appel- Kimberly BRIEF: M. Sanchez- lees. ON Ocasio, Kaiser, PLLC, Wash- Bredhoff & D.C.; Nicholson, Michael Michael ington, Detroit, Michigan, Appel- Saggau, F. lees.

Case Details

Case Name: Andria Priestley v. Michael Astrue

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 7, 2011

Citation: 651 F.3d 410

Docket Number: 10-1113, 10-1160, 10-1176

Court Abbreviation: 4th Cir.