United States District Court, W.D. Washington, Tacoma
ORDER ON AMENDED MOTION FOR ATTORNEY FEES PURSUANT TO
28 U.S.C. §2412 (D)
J. BRYAN, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Plaintiff's Amended
Motion for Attorney Fees pursuant to 28 U.S.C. § 2412
(D). Dkt. 24. The Court has reviewed the pleadings filed
regarding the motion and the remaining file.
Plaintiff's second motion for an award of attorneys'
fees in this case. Plaintiff filed this case on July 20,
2017, challenging the Commissioner's decision that he did
not qualify for disability benefits under Title II of the
Social Security Act. Dkt. 1. On January 29, 2018, the
Commissioner's decision was reversed and the case
remanded. Dkt. 14. On April 23, 2018, Plaintiff filed a
motion for attorney's fees, in the amount of $7, 281.23,
and costs, in the amount of $400.00. Dkt. 16. Defendant
opposed the motion. Dkt. 20. On May 14, 2018, the undersigned
granted the motion, in part, and denied it, in part, and
awarded Plaintiff $137.75 in attorney's fees and $400.00
costs. Dkt. 23. Now pending is Plaintiff's amended motion
for an award of attorney's fees. Dkt. 24. For the reasons
provided, the motion (Dkt. 24) should be granted, in part,
and denied, in part.
underlying facts are in the Report and Recommendation (Dkt.
13) and are adopted here, by reference. In the May 14, 2018
Order, the undersigned found that attorney's fees and
expenses should be awarded pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (d)(1)(A). Dkt. 23. In
reviewing the amount of fees requested the Court held that:
Plaintiff requests $7, 281.23 in attorney's fees for 37
hours of work at the attorney's fee rate. Dkt. 16.
Christopher Dellert, a Washington lawyer, billed for 0.7
hours for work done starting July 19, 2017. Dkt. 16-2, at 1.
A Robertson Wendt submitted a bill for 8.2 hours, starting on
May 30, 2107, and includes a July 6, 2017 entry that
provides: “[r]eview file and unfavorable ALJ decision,
telephone conference with Mr. Kennedy and Mrs. Kennedy to
discuss federal court appeal; telephone and email attorneys
Jeff Baird and Chris Dellert in Seattle WA about serving as
local counsel in federal court appeal; email brief writer
Sarah Bohr about writing brief.” Dkt. 19-1, at 1.
Although it is unclear whether Wendt is a lawyer in any state
(he is not a member of the Washington State Bar and has a
South Carolina address), he further bills for review of the
record and other documents, including reviewing
Plaintiff's opening brief and reply brief from Bohr. Dkt.
19-1, at 2. (The opening brief was filed on November 6, 2017
and the reply on December 18, 2017. (Dkts. 10 and 12). The
opening brief and reply brief were signed by Dellert, but
there are no records he reviewed any of these pleadings and
did not bill for doing so. His last billed action was in July
of 2017.) Plaintiff also seeks attorney's fees for Sarah
Bohr, a Florida and District of Columbia lawyer, for 28.1
hours of work. Dkt. 16-2, and 18. Bohr submits bills for
review of the record and ALJ decision, drafting the facts and
argument in the opening brief, drafting the reply brief, and
reviewing the Report and Recommendation. Dkt. 18, at 5. . .
Plaintiff's motion for attorney's fees (Dkt. 16)
should be granted as to the 0.7 hours billed by the
Washington lawyer Dellert at the EAJA rate of $196.79 for a
total of $137.75, and denied without prejudice as to the fees
of the remaining lawyers. Although Plaintiff moves for an
award of attorneys' fees for both Wendt's and
Bohr's time, there is no evidence in the record that
either Wendt or Bohr are admitted to practice in this court,
whether as a Washington lawyer or by pro hac vice. Based on
the record, they did almost all the work, Bohr wrote the
briefs and Wendt reviewed all documents and brought both Bohr
and Dellert into the case. Neither Wendt nor Bohr have
entered notices of appearance. They were unknown to the Court
until the instant motion was filed. The Court takes a dim
view of lawyers attempting to practice law in this district
without following Local Rule of Western District of
Washington 83.1. On the other hand, if this Court is missing
something, the Washington counsel may reapply for fees for
Wendt and Bohr with a full explanation.
Dkt. 23, at 3-5.
17, 2018, Plaintiff filed the pending amended motion for an
award of attorneys' fees for the work of both Bohr and
Wendt. Dkt. 24. In support of his amended motion, Plaintiff
files the Declaration of Robertson Wendt, an attorney
licensed to practice in South Carolina, but not Washington.
Dkt. 27. In this declaration, Wendt states that he “is
the primary attorney for [Plaintiff] Charles Kennedy. . .
[w]ith the exception of this case filed in the Western
District of Washington, [he has] appeared in all
administrative and federal court proceedings as
plaintiff's attorney since May of 2015.” Dkt. 27,
at 1. Wendt asserts that he “associated attorney
Christopher Dellert to serve as local counsel in this action
for judicial review because Mr. Dellert was admitted to
practice in this district.” Id., at 1-2. Wendt
maintains that “[e]ven though [he has] not appeared in
this action, [he] continue[s] to serve as the plaintiff's
primary attorney.” Id., at 2. Wendt asserts
that he spent a total of 8.20 hours of time on
Plaintiff's case. Id., at 3.
support of this motion, Plaintiff also filed the Declaration
of Christopher Dellert. Dkt. 28. Dellert states that he has
“been the lead attorney in this case since it was filed
in July 2017.” Id., at 1. He alleges that he
“prepared the opening documents (Summons, Complaint,
Civil Cover Sheet); perfected service; drafted the Motion for
Extension of Time (Dkt. 8) and the Motion for Attorney Fees
(Dkt. 16). Dellert asserts that he “reviewed and filed
the Opening Brief, Reply Brief, and Reply to Defendant's
Response to ensure that the formatting was in accordance with
this Court's rules and that the content and legal
arguments were appropriate.” Id., at 2. He
states that he “did not bill for [his] time reviewing
or formatting any of the documents in this case as these
tasks would not occur in cases [he] briefed himself and were
duplicative of the efforts of Mr. Wendt and Ms. Bohr.”
Id. Plaintiff again moves for an award of fees for
the time spent by Ms. Bohr 28.10 hours as a brief writer.
responded and is opposed to the amended motion for
attorney's fees. Dkt. 29. Plaintiff replied, and now
requests additional attorneys' fees. Dkt. 30. The motion
is now ripe for decision.
EAJA, prevailing parties are awarded expenses and costs
“unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
2412 (D)(1)(b). “‘Fees and other expenses'
include ‘reasonable attorney fees.'”
Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir.
2017)(quoting 28 U.S.C. § 2412 (D)(1)(b)).
are two issues in this motion (1) whether an award of
attorneys' fees to non-Washington lawyers Bohr and Wendt
is proper, ...