Hamilton v. Apfel

Full title: KAREN HAMILTON, Plaintiff, v. KENNETH S. APFEL, Commissioner of the Social…

Court: United States District Court, D. Alaska

Date published: Mar 1, 2000

F99-6 CV (JWS) (D. Alaska Mar. 1, 2000)

Opinion

F99-6 CV (JWS)

March, 2000

I. MOTION PRESENTED

JOHN W. SEDWICK, District Judge.

At docket 41, plaintiff Karen Hamilton ("Hamilton") seeks reconsideration of this court's order at docket 40 denying Hamilton's motion for attorney's fees. A response from defendant Kenneth S. Apfel is unnecessary for reasons discussed below.

II. BACKGROUND

The court incorporates its prior order at docket 40 for a statement of background facts relevant to this motion. Some additional comments are in order by way of review and in light of representations made in Hamilton's motion for reconsideration. This court denied Hamilton's motion for attorney's fees because Hamilton was represented by Andrew Harrington of the Alaska Legal Services Corporation ("ALSC"). The Omnibus Consolidated Rescissions and Appropriations Act of 1996, Public Law 104-134, § 504(a)(13), 110 Stat. 1321 (1996), precludes ALSC from pursuing an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) ("EAJA"). Hamilton maintained below, and still maintains, that the statutory bar is no longer at issue because ALSC has withdrawn as her counsel, and she is now represented by William Schendel, who is a private attorney. Schendel filed an "Entry of Appearance" on December 8, 1999, by which he purported to assume responsibility as Hamilton's attorney of record.¹ The Clerk of Court subsequently advised Schendel that a Substitution of Counsel would have to be filed pursuant to D. Ak. LR 83.1. Schendel and Harrington then filed a "Substitution of Counsel" on December 29, 1999, by which Harrington and ALSC purported to withdraw as Hamilton's lawyers and Schendel purported to assume responsibility as her lawyer.² However, as explained in this court's order at docket 40, no valid withdrawal and substitution of counsel was ever effected. D. Ak. LR 83.1(e) (3) requires that a motion be filed and expressly provides that "[w]ithdrawal as counsel requires leave of the court." Hamilton's lawyers did not comply with the local rule. Consequently, an effective withdrawal and substitution of counsel was never completed.

1 See Entry of Appearance, filed December 8, 1999, docket 33.

2 See Substitution of Counsel, filed December 29, 1999, docket 34.

Hamilton's motion for reconsideration acknowledges that her lawyers were aware of this court's local rules governing withdrawal and substitution of counsel. In fact, Hamilton concedes that the Clerk of Court advised her lawyers that they had not proceeded in accordance with the local rules when Schendel filed an entry of appearance. Hamilton admits that the Clerk of Court instructed her lawyers that they would need "either a substitution or [sic] a motion to withdraw, and referred [Hamitlon's lawyer] to Local Rule 83.1(e)."³ Hamilton then claims her lawyers filed a "substitution" of counsel. However, her motion for reconsideration implies that her "substitution" was simply a means by which Schendel could affiliate as co-counsel with ALSC. Other facts are noted below.

3 See Hamilton's Motion for Reconsideration, docket 41 at p. 2.

III. STANDARD OF REVIEW

D. Ak. LR 7.1(l) does not establish a standard for granting or denying motions for reconsideration. However, as a question of judicial efficiency, motions for reconsideration should only be sought or granted if the court has overlooked a material fact, misconceived a principle of law directly bearing upon the litigated issue, or if the court's initial decision was clearly erroneous or presents the risk of committing a manifest injustice.⁴

4 See, e.g., Rodick v. City of Schnedctady, 155 F.R.D. 29, 29 (N.D.N Y 1994) (reconsideration only justified if there has been "an intervening change" in controlling law, new evidence is discovered which was not previously available, or it is necessary "to remedy a clear error of law or to prevent obvious injustice"); Martin v. Mapco Ammonia Pipeline, Inc., 866 F. Supp. 1304, 1308 (D.Kan. 1994) (reconsideration justified if there has been an intervening change in controlling law, new evidence has become available, or there is a need to correct a clear error or prevent a manifest injustice); see also Alaska R.Civ.P. 77(k)(2) (specifying grounds warranting reconsideration under state rules of procedure).

IV. DISCUSSION

Hamilton's motion for reconsideration impliedly seeks to distinguish "substitution of counsel" from "withdrawal of counsel" as an excuse for her failure to observe the procedures specified in D. Ak. LR 83.1(e)(3). The attempt is unavailing. Hamilton's "Substitution of Counsel" filed December 29, 1999, expressly stated that "Alaska Legal Services Corporation is withdrawing as counsel of record for plaintiff and WILLIAM SCHENDEL . . . is substituted as counsel of record for plaintiff."⁵ As recognized by the Substitution of Counsel filed by Hamilton, "substitution of counsel" and "withdrawal of counsel" are simply two parts of the same process by which one lawyer or firm assumes responsibility for a pending matter from another lawyer or firm. Before one lawyer may "substitute" for another, the other lawyer must "withdraw," or the two events must be effected in a more or less simultaneous manner. In any event, a "substitution" of counsel is not the same thing as entering an appearance as co-counsel in a case. Hamilton's private lawyer, Schendel, filed a "Substitution of Counsel" on December 29, 1999. No corresponding motion was filed and no withdrawal was sought by ALSC. The Substitution of Counsel was therefore ineffective under D. Ak. LR 83.1(e).

Apparently recognizing that she is skating on thin ice, Hamilton argues that nothing prohibits co-counsel from entering an appearance. Schendel filed an "Entry of Appearance" on December 9, 1999. Therefore, Hamilton suggests that Schendel was merely acting as co-counsel. However, the December 9, 1999 "Entry of Appearance" did not identify Schendel as co-counsel. Instead, it stated that Schendel was entering an appearance as Hamilton's "attorney of record."⁶ Moreover, Hamilton fails to appreciate that Schendel filed a "Substitution of Counsel" on December 29, 1999. The subsequently filed "substitution" operated to amend or supersede any previously filed entry of appearance. It clearly stated that ALSC was intending to withdraw from representing Hamilton. But ALSC never withdrew as Hamilton's counsel.

6 See Entry of Appearance, filed December 8, 1999, docket 33.

Hamilton advances another argument based on D. Ak. LR 77.1. Hamilton notes that Rule 77.1 permits the Clerk of Court to enter substitution orders without a motion. However, Rule 77.1 does not do away with the requirement for a motion. The rule simply permits the clerk to sign and enter "orders on consent for the substitution of attorneys."⁷ Furthermore, Hamilton neglects to point out that the rule expressly provides that "[a]ny order entered by the clerk may be subsequently suspended, altered, or rescinded by the court."⁸ Thus, Hamilton proceeded at her own risk in relying on Rule 77.1.

7 See D. Ak. LR 77.1(1).

8 See D. Ak. LR 77.1.

Hamilton urges this court to conform its local rules to the practice in state court where substitution orders do not require an accompanying motion. This argument would be better made in connection with amending the local rules, a matter not presently before the court. Moreover, this argument is duplicitous in that it implies that a substitution was, in fact, attempted, and not a mere affiliation of co-counsel as Hamilton suggests elsewhere in her motion for reconsideration. If Hamilton is going to seek reconsideration which, if granted, would operate to essentially excuse compliance with this court's local rules, Hamilton must embrace one consistent and clearly expressed version of the facts. Either Schendel was merely attempting to enter an appearance as co-counsel (which the facts belie) or he was attempting to substitute in as Hamilton's lawyer. Hamilton can't have it both ways.

Finally, Hamilton's motion for reconsideration contends that the court should reconsider its prior ruling on equitable grounds. Hamilton notes that after her Substitution of Counsel was filed on December 29, 1999, both the Court Clerk and the United States Attorney representing Apfel began serving Schendel and not ALSC with motions, papers, and orders. From these circumstances, Hamilton contends that no one was or would be prejudiced if the court simply excused compliance with Local Rule 83.1(e) and permitted ALSC to withdraw and Schendel to substitute in as Hamilton's counsel. However, this argument overlooks the fact that Apfel was denied the opportunity to respond or oppose any motion to withdraw which should have been filed pursuant to D. Ak. LR 83.1(e). Furthermore, the local rules are not amended by waiver or conduct of parties. If this court accepted Hamilton's equitable argument, it would lend its imprimatur to questionable procedural practices by which parties could amend, revise, or rewrite the local rules based on their own (mistaken) practices. Not only would this court be abdicating its responsibility to manage its caseload, but it would invite confusion into the process. It makes better sense to "stick to the rules" rather than adopt Hamilton's arguments.

V. CONCLUSION

For the foregoing reasons, Hamilton's motion for reconsideration at docket 41 is DENIED.