651 F.3d 410 (4th Cir. 2011), 10-1113, Priestley v. Astrue

Docket Nº:10-1113, 10-1160, 10-1176.
Citation:651 F.3d 410
Opinion Judge:NIEMEYER, Circuit Judge:
Party Name:Andria PRIESTLEY, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee, and Social Security Administration, Party-in-Interest. Barbara Peter, Plaintiff-Appellant, and Social Security Administrative Record, Party-in-Interest, v. Michael J. Astrue, Commissioner of Social Security, Defendant-Appellee. Zella Da
Attorney:Charles Lee Martin, Martin & Jones, Decatur, Georgia, for Appellants. Marvin Jennings Caughman, Office of the United States Attorney, Columbia, South Carolina, for Appellee. Paul T. McChesney, Spartanburg, South Carolina, for Appellants. William N. Nettles, United States Attorney, Beth Drake, Fir...
Judge Panel:Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DAVIS joined. Judge DAVIS wrote a separate opinion concurring in part and c...
Case Date:July 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 410

651 F.3d 410 (4th Cir. 2011)

Andria PRIESTLEY, Plaintiff-Appellant,

v.

Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee,

and

Social Security Administration, Party-in-Interest.

Barbara Peter, Plaintiff-Appellant,

and

Social Security Administrative Record, Party-in-Interest,

v.

Michael J. Astrue, Commissioner of Social Security, Defendant-Appellee.

Zella Davis, Plaintiff-Appellant,

v.

Commissioner of Social Security Administration, Defendant-Appellee.

Nos. 10-1113, 10-1160, 10-1176.

United States Court of Appeals, Fourth Circuit

July 7, 2011

Argued: March 23, 2011.

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[Copyrighted Material Omitted]

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ARGUED:

Charles Lee Martin, Martin & Jones, Decatur, Georgia, for Appellants.

Marvin Jennings Caughman, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

ON BRIEF:

Paul T. McChesney, Spartanburg, South Carolina, for Appellants.

William N. Nettles, United States Attorney, Beth Drake, First Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina; Dorrelyn K. Dietrich, Special Assistant United States Attorney for the District of South Carolina, John Jay Lee, Acting Regional Chief Counsel, Social Security Administration, Denver, Colorado, for Appellee.

Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DAVIS joined. Judge DAVIS wrote a separate opinion concurring in part and concurring in the judgment. Senior Judge HAMILTON wrote a separate opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

The plaintiffs in these three cases prevailed in district court on their appeals from the Social Security Administration's denial of their claims for disability benefits, and then, as prevailing parties, filed motions under the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § 2412(d), for " fees and other expenses." In the motions, the plaintiffs sought reimbursement for the attorneys fees of Paul T. McChesney, a South Carolina attorney, as well as the attorneys fees of two out-of-state attorneys, who assisted McChesney in writing the briefs and other pleadings submitted to the district court.

While the district court granted the motions for the fees charged by McChesney, it denied the motion for the fees charged by the out-of-state attorneys because they were not licensed to practice law in the District of South Carolina and were not admitted pro hac vice in these cases. District

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of South Carolina Local Civil Rule 83.I.05 authorizes pro hac vice admission of out-of-state attorneys " for occasional appearances," but not as a " substitute for regular admission to the Bar of this Court." The out-of-state attorneys, whom McChesney hired to work on the briefs in these cases, had also provided him with similar assistance in dozens of earlier cases. Their work was generally responsible for between 75% and 85% of the fees for which McChesney's clients sought reimbursement under the EAJA. The district court concluded that the out-of-state attorneys' lack of licensure was a " special circumstance" that made reimbursement of their fees " unjust" under the EAJA. See 28 U.S.C. § 2412(d)(1)(A).

On appeal, the plaintiffs contend that McChesney's retention of out-of-state attorneys for assistance in brief writing did not preclude reimbursement for their fees under the EAJA, nor did it violate the District of South Carolina's local rules, and therefore, they argue, there were no " special circumstances" to justify denial of the out-of-state attorneys fees.

Even though the District of South Carolina appropriately regulates the practice of law in its court, we conclude that the use of nonadmitted lawyers for brief writing services does not present a " special circumstance" sufficient to deny a fee award as " unjust" under the EAJA. Accordingly, we vacate and remand these cases for reconsideration of the fee applications.

I

Andria Priestley, Barbara Peter, and Zella Davis filed claims for disability benefits with the Social Security Administration, and the Social Security Administration denied each of the claims. These plaintiffs appealed to the district court, successfully challenging the agency's rulings. As prevailing parties, they then filed motions for fees and expenses under the EAJA. Priestly sought reimbursement of $6,661.57; Peter, of $6,083.52; and Davis, of $8,639.62. Supporting the motions, the plaintiffs included the affidavit of their attorney, Paul T. McChesney, as well as the affidavits of out-of-state attorneys Charles L. Martin and Perrie H. Naides, or, in one case, Martin and paralegal David Tillett, who assisted McChesney in drafting briefs and pleadings for McChesney's review and filing. In the motions, the plaintiffs indicated that the time spent by McChesney accounted for roughly 15% to 25% of the time for which fees were claimed, and the time spent by Martin, Naides, and Tillett accounted for the remainder.

Although McChesney was a South Carolina attorney, admitted to practice law in both the State courts and in the district court, Martin and Naides were not admitted in the State, nor in the district court. Martin, a Georgia lawyer, and Naides, a Pennsylvania lawyer, practice their specialty of briefing Social Security appeals through their firm, Martin and Jones, in Decatur, Georgia. McChesney retained Martin and Naides because of their expertise, and these attorneys assisted McChesney by providing him with research and drafts of briefs and other filings. Martin and Naides never spoke with McChesney's clients, nor with opposing counsel. They limited their involvement to submitting, in draft form, briefs and papers, which McChesney then reviewed, edited, signed, and filed with the court. Martin was occasionally listed on filed documents as " attorney for plaintiff" or " on the brief," and on some of the papers filed, his name was accompanied by an electronic signature. Also, in his affidavits supporting the plaintiffs' applications for fees, Martin stated that he served as " counsel for the plaintiff," while Naides' affidavits stated that

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she " provided legal services in support of the representation."

Martin and Naides were not admitted to the South Carolina State bar and therefore did not qualify for admission to the bar of the district court. They also suggest that they did not qualify for pro hac vice admission because they associated with McChesney too regularly to satisfy the " occasional appearance" requirement. McChesney engaged Martin in dozens of cases over the years since at least 2003.

The Commissioner of Social Security opposed the plaintiffs' motions for fees and other expenses, arguing that because Martin and Naides were neither licensed in South Carolina, nor admitted pro hac vice, they had engaged in the unauthorized practice of law when assisting in these cases. The Commissioner claimed that the plaintiffs should not be reimbursed for their work at all, or, alternatively, that reimbursement be only at a reduced rate.[*]

By separate orders entered in each of the cases before us, the district court granted the motions for attorneys fees to the extent that the plaintiff sought reimbursement for work performed by McChesney, but denied them with respect to reimbursement for work performed by Martin and Naides because they had not been admitted to practice in the District of South Carolina, either permanently or pro hac vice. In Davis, No. 10-1176, however, the court did grant the motion for fees for work performed by Tillett at a lower " paralegal rate" and also reduced the rate at which McChesney was compensated during his travel time. In support of its orders, the court explained that Martin had a long history of assisting McChesney with Social Security appeals and had previously been warned by other judges in South Carolina to gain admission under the court's local rules, in one form or other, before continuing that work. Martin's violations, the court found, contravened the public policy in favor of attorney licensure and thus presented the " special circumstance" in 28 U.S.C. § 2412(d)(1)(A) that would render fee awards for his and Naides' work " unjust."

From the district court's orders, which denied, for the most part, their motions for reimbursement of fees and expenses, Priestly, Peter, and Davis filed these appeals, which we consolidated by order dated March 23, 2010.

II

For their main argument, the plaintiffs contend that the district court erred by invoking the EAJA's " special circumstances" exception to deny reimbursement for work performed by the out-of-state attorneys Martin and Naides. They argue that the out-of-state attorneys' work in assisting McChesney did not violate any local rule of the district court and that there is no public policy against a South Carolina attorney hiring out-of-state contract attorneys to assist him in writing

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briefs. They point to the district court's local rule, which provides that parties in the district " must be represented by at least one member of the Bar of this Court who shall sign each pleading, motion, discovery procedure, or other document served or filed in this Court," D.S.C. Civ. R. 83.I.04 (emphasis added), asserting that the local rule's requirement was fulfilled by McChesney, who represented each of the plaintiffs and signed all of the papers filed in court on behalf of each. They argue that their out-of-state attorneys simply drafted briefs for their locally admitted attorney to...

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