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Kennedy v. Berryhill

United States District Court, W.D. Washington, Tacoma

June 13, 2018

NANCY BERRYHILL, Acting Commissioner Social Security Administration, Defendant.



         THIS 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.

         This is 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.


         The 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.

         On May 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.

         In 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. Dkt. 29.

         Defendant 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.


         Under 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)).

         There are two issues in this motion (1) whether an award of attorneys' fees to non-Washington lawyers Bohr and Wendt is proper, ...

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