Daniel E. Abbey v. Anthony J. Principi , 2003 U.S. Vet. App. LEXIS 720 ( 2003 )

This version includes the errata dtd 30Sep03 -e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 01-501(E)
DANIEL E. ABBEY , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appellant's Application for Attorney Fees and Expenses
(Decided September 24, 2003 )
Barton F. Stichman and James W. Stewart (nonattorney practitioner), both of Washington,
D.C., were on the pleadings for the appellant.
Tim S. McClain, General Counsel; Joan E. Moriarty, Acting Assistant General Counsel;
Darryl A. Joe, Acting Deputy Assistant General Counsel; and Barbara J. Finsness, all of
Washington, D.C., were on the pleadings for the appellee.
Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.
STEINBERG, Judge, filed the opinion of the Court and separate views.
STEINBERG, Judge: Before the Court is the appellant's January 17, 2002, application, filed
through counsel, for attorney fees and expenses pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d) (EAJA). The Secretary filed a response, and the appellant filed a reply thereto.
The Court twice ordered supplemental briefing, to which both parties responded. For the reasons
set forth below, the Court will grant the appellant's application.
I. Background
The appellant, through attorney Barton F. Stichman and nonattorney-practitioner James W.
Stewart, previously sought review of a November 21, 2000, Board of Veterans' Appeals (Board or
BVA) decision that denied a Department of Veterans Affairs (VA) disability rating greater than 20%
for service-connected residuals of a fracture of the left humerus. In October 2001, the Court granted
the appellant's motion for remand, denied the Secretary's motion for remand, and vacated the Board
decision because the Board had failed (1) to address in its decision the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, and (2) to analyze 38 C.F.R. § 4.59 (2000) in light
of the specific medical evidence of record. Abbey v. Principi, No. 01-501, 2001 WL 1181652(Vet. App. Oct. 1, 2001) (single-judge order) [hereinafter Abbey I].
In January 2002, the appellant filed an EAJA application seeking $2,647.15 in attorney fees
and expenses. Application (Appl.) at 1. The appellant calculates the requested amount based on
(1) 20 hours, at a rate of $120 per hour, spent by the senior litigation paralegal, Mr. Stewart, who is
employed by the National Veterans Legal Services Program (NVLSP) and is admitted to practice
before this Court as a nonattorney practitioner; (2) 1.5 hours spent by Mr. Stichman, a member of
the Court's bar, at a rate of $140.95 per hour; and (3) expenses in the amount of $35.72. Appl. at
5-6. According to records of the Court, Mr. Stewart has been certified to practice under the
supervision of Mr. Stichman in accordance with Rule 46(b)(1) of the Court's Rules of Practice and
Procedure (Rules). In February 2002, the Secretary filed a response and the appellant filed a reply
thereto. The Secretary concedes that the appellant has met the "predicate findings for an EAJA
award" (Response (Resp.) at 1-2 (citing Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1994))) and contests
only what the appellant asserts is the appropriate hourly rate for the work of nonattorney-practitioner
Stewart (Resp. at 4). The Secretary asserts that Mr. Stewart should be awarded, instead of the $120
per hour fee requested, a $90 per hour fee based on the Laffey Matrix, a chart based on the Consumer
Price Index (CPI) and adopted by courts in the D.C. Circuit for calculating fees for both attorneys
and paralegals; the Secretary asserts that the higher rate represents "an unreasonable and unsupported
rate of compensation for nonattorney practitioner work before this Court". Resp. at 4, 13-14; see
Covington v. District of Columbia, 57 F.3d 1101, 1105 (D.C. Cir. 1995) (describing the Laffey
Matrix as "a schedule of charges based on years of experience developed in Laffey v. Northwest
Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983)", aff'd in part and rev'd on other grounds, 746 F.2d 4(D.C. Cir. 1984), overruled in part on other grounds by Save Our Cumberland Mountains v. Hodel,
857 F.2d 1516, 1524 (D.C. Cir. 1988) (en banc)). Principally, the Secretary argues that Mr. Stewart's
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"experience does not warrant payment of a higher rate [than $90 per hour] for a nonattorney
practitioner." Resp. at 9-12. The Secretary urges the Court to adopt the $90 per hour fee suggested
by the Laffey Matrix and thus reduce the total EAJA award to $2,047.15. Resp. at 13-15.
In reply, the appellant, inter alia, suggests that the Laffey Matrix and an alternative matrix
from the United States Attorney's Office in D.C. are both (1) outdated because they are based on the
prevailing market rates for legal assistants in D.C. in the 1980s and (2) "'somewhat crude'" because
they do not adequately account for "an individual's skill, experience, and reputation". Reply at 7-9
(quoting Covington, 57 F.3d at 1109). The appellant argues that in the instant case the Secretary's
proposed fee of $90 per hour for Mr. Stewart does not account for his skill, experience, and
reputation in veterans law (Reply at 9-10), and that the reasonableness of the fee is demonstrated by
eight previous cases in this Court where the Secretary has "willingly agreed" to pay fees at the
$120-per-hour rate for Mr. Stewart's work as a nonattorney practitioner (Reply at 5-6, 13).
In April 2002, the Court stayed proceedings in this case pending the outcome of Wilson v.
Principi, which also contained as the sole disputed issue the appropriate hourly rate for Mr. Stewart.
Abbey v. Principi, No. 01-501, 2002 WL 745958 (Vet. App. Apr. 25, 2002) (per curiam order). On
December 12, 2002, the Court issued an opinion in Wilson and determined, based on the evidence
presented there and the Laffey Matrix, and also by analogizing Mr. Stewart's work to that of a senior
paralegal in D.C., that $90 per hour was the prevailing market rate for a fee for Mr. Stewart's work
in that case and "awarded $1,215 for non[]attorney practitioner fees for 13.5 hours at $90 per hour."
Wilson, 16 Vet.App. 509, 511, 515 (2002) [hereinafter Wilson I]. Thereafter, the Court issued a
briefing order in this case lifting the stay and ordering the parties to file memoranda addressing "why
the prevailing market rate in this case should not be $90 per hour." Abbey v. Principi, 16 Vet.App.
543, 544 (2002) (per curiam order).
In his January 2003 response to the Court's briefing order, the appellant argues that the
evidence presented in the instant case supports a fee award of $120 per hour for Mr. Stewart's work
here. Memorandum (Mem). at 2. In support of that assertion, he presents evidence including
(1) evidence attesting that Mr. Stewart is paid by the NVLSP at a higher rate than some attorneys
working for that organization (Mem. at 8-9, Exhibit (Exh.) G-H); (2) evidence that Mr. Stewart has
represented appellants before this Court in more than 200 cases (Mem. at 12-13); and (3) evidence
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that the prevailing market rate for certain nonattorneys in D.C. varies depending on their work
experience and that the $120 per hour sought here is within that prevailing-market-rate range
(Mem. at 10-11, Exh. B-F).
On February 21, 2003, the Court denied reconsideration of Wilson I. Wilson v. Principi,
17 Vet.App. 19, 20 (2003) (per curiam order). In the Secretary's March 2003 memorandum response
to the appellant's January 2003 memorandum, the Secretary argues that Wilson I, supra, and its
reliance on the Laffey Matrix is controlling and that the additional evidence submitted by the
appellant in the instant case was also submitted with the appellant's unsuccessful motion for
reconsideration in Wilson I; thus, the Secretary contends that the Court "should reject the same
arguments here." Mem. Resp. at 2-4. The appellant filed a reply that same month and argues that
the Secretary presented no additional evidence in his memorandum to support his contentions and
"does not address the issue whether the new evidence submitted by [the] appellant provides prima
facie evidence of the prevailing market rate for non[]attorney[-practitioner] Stewart" or whether the
prevailing market rate in the instant case should be "at least" $120 per hour. Mem. Reply at 2. The
appellant maintains that the instant case is not controlled by Wilson I, supra, because the Court's
determination of the prevailing market rate for an individual advocate "is a finding of fact based on
the evidence submitted by the parties in an adversarial proceeding." Mem. Reply at 3. He further
argues that his due process rights would be violated if he was estopped in the instant case from
submitting evidence and participating in litigation on an issue of fact, the prevailing market rate for
Mr. Stewart, that had been decided in Wilson I, supra. Mem. Reply at 3. In May 2003, the Court
ordered additional briefing regarding the effect, if any, of section 403 of the Veterans Benefits Act
of 2002, Pub. L. No. 107-330, §403, 116 Stat. 2819, 2833 (2002) (VBA), which was enacted on
December 6, 2002, and includes authority for the Court under the EAJA "'to award fees and
expenses, in an amount determined appropriate by the United States Court of Appeals for Veterans
Claims, of individuals admitted to practice before the Court as non[]attorney practitioners.'" Abbey
v. Principi, 17 Vet.App. 75, 76 (2003) (per curiam order) (quoting VBA § 403). Specifically, the
Court requested "supplemental action from the parties" regarding the following issues:
(1) Submission of supplemental briefing on the significance
of VBA § 403 in terms of the Court's authority to award EAJA fees
for the work of (a) Mr. Stewart in this case and (b) non[]attorney
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practitioners in general, including whether the Court is authorized to
establish its own fee schedule for the work of such practitioners; and
(2) Submission of supplemental briefing and supporting
evidence regarding (a) the extent to which Mr. Stewart's employer is
comparable to the large private law firms from which affidavits
regarding the prevailing market rate have been submitted by the
appellant in this case in support of his requested hourly EAJA rate for
Mr. Stewart's work and (b) the extent to which Mr. Stewart's
employer is comparable to any other firm or entity providing legal
representation and the prevailing market rate at which the work of
non[]attorney representatives and/or paralegals is billed for at such a
firm or entity.
Abbey, supra.
On June 16, 2003, the appellant responded; he argues that there is no significance to the new
statutory language included in VBA § 403 as applied to Mr. Stewart because "[t]he Court had
authority to award EAJA fees for the work of Mr. Stewart both before and after the VBA," but noted
that that section did "provide the Court with authority to award fees under the EAJA for the work
of individuals whose work could not be compensated under the EAJA prior to the change in law –
'individuals admitted to practice before the Court as non[]attorney practitioners' who were not
supervised by attorneys." Mem. Resp. at 4-5 (quoting VBA § 403). The appellant contends (1) that
in light of VBA § 403, its legislative history, and the longstanding practice of courts to determine
the prevailing market rate on a case-by-case basis, this Court does not have authority to create its
own fee schedule (Mem. Resp. at 5-10), and (2) that "for purposes of calculating fees under a
fee-shifting statute like the EAJA[,] which authorizes 'reasonable attorney's fees,' Mr. Stewart's
employer is . . . 'comparable' to both 'large private law firms' and 'other law firms and entities
providing legal representation'" (Mem. Resp. at 13-15 (quoting Abbey, 17 Vet.App. at 76, and citing
Blum v. Stenson, 465 U.S. 886, 898 (1984), and Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 933
(Fed. Cir. 2001))). Attached to the appellant's response memorandum is, inter alia, an affidavit from
the sole partner of a small D.C. law firm who stated that his firm regularly billed "over $150 per
hour" for the work of "[s]killed and specialized paralegals".
On July 21, 2003, the Secretary responded; he reiterates his argument that the parties here
are identical to those in Wilson I and that the Court should follow that precedential opinion by
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awarding Mr. Stewart EAJA fees at a rate of $90 per hour. Supplemental (Suppl.) Mem. at 6-7, 11.
The Secretary (1) agrees with the appellant that "VBA § 403 now provides for the award of EAJA
fees for non[]attorney practitioners whose work is not supervised by an attorney, whereas before the
enactment of the VBA, the Court had no authority to award such fees" and (2) notes that the "VBA
has no significance in this particular case" because under pre-VBA law Mr. Stewart was eligible to
receive EAJA fees for his services as a supervised nonattorney practitioner. Suppl. Mem. at 3. The
Secretary did not submit additional evidence as to whether large law firms are comparable to the
NVLSP, and he asserts that that issue is not pertinent. Suppl. Mem. at 8. He notes that he "has never
contested the fact that Mr. Stewart is well qualified." Suppl. Mem. at 8-9. Neither the Secretary here
nor the appellant in his June 2003 response addressed in terms of the fee award in this case this
Court's new authority under VBA § 403 to award as part of EAJA applications "fees and expenses,
in an amount determined appropriate", for the work of nonattorney practitioners. Abbey, supra.
On August 4, 2003, the appellant submitted additional evidence, purportedly pursuant to Rule
30(b). See U.S. VET . APP . R. 30(b) (providing for party to advise Court of "pertinent and significant
authority [that] comes to the attention of a party after the party's brief has been filed"). On
August 18, 2003, the Secretary responded; he "urges the Court not to accept" the appellant's letter
or the additional evidence enclosed with it. Because this submission was contemplated within the
"supporting evidence" described in the Court's May 2003 supplemental briefing order (to be filed
not later than 30 days after the date of that order) as contrasted with "pertinent and significant
authority" as contemplated by Rule 30(b) and because the 30-day deadline under the May 2003 order
has expired, the Court will not consider this additional evidence in the disposition of this matter.
II. Analysis
This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to
28 U.S.C. § 2412(d)(2)(F). The appellant's January 17, 2002, EAJA application was filed within the
30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies all EAJA
jurisdictional content requirements because the application contains the following: (1) A showing
that, by virtue of the Court's remand, the appellant is a prevailing party within the meaning of the
EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth
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does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially
justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B);
Scarborough v. Principi, 319 F.3d 1346, 1349-55 (Fed. Cir. 2003); Bazalo v. West, 150 F.3d 1380,
1383-84 (Fed. Cir. 1998); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc).
In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See
28 U.S.C. § 2412(d)(1)(A) ("court shall award to a prevailing party . . . fees and other expenses");
Briddell v. Principi, 16 Vet.App. 267, 271 (2002); Sumner v. Principi, 15 Vet.App. 256, 260-61
(2001) (en banc), aff'd sub nom. Vaughn v. Principi, __ F.3d __, 2003 WL 21707273 (Fed. Cir. July
24, 2003); Cullens, supra. The appellant has the burden of demonstrating prevailing-party status
under the EAJA. Ibid. Prevailing-party status arises in either of two ways. The first is through a
direction of the Court, evident within the terms of the particular Court decision upon which the
appellant is basing the EAJA application, for VA to award VA benefits to the appellant. Sumner,
15 Vet.App. at 264-65. The second is through the grant of a merits-stage Court remand that was
predicated upon administrative error. Ibid. In order for a remand to have been predicated upon
administrative error, the remand must either (1) have been directed in a Court opinion, decision, or
order that contained a Court recognition of administrative error or (2) have been granted on the basis
of a concession of error by the Secretary. McCormick v. Principi, 16 Vet.App. 407, 411 (2002);
Briddell, 16 Vet.App. at 271-72. The Court will not "investigate at the EAJA prevailing-party stage
the validity, type, or nature of the administrative error." McCormick, supra. Accordingly, in the
instant case, because the Court's remand was expressly predicated, in part, on the Court's finding that
the Board erred under 38 U.S.C. § 7104(a) and (d)(1) in not discussing § 4.49, see Abbey I, 2001 WL
1181652, at *2, the appellant was a prevailing party for EAJA purposes. See 28 U.S.C.
§ 2412(d)(1)(A); Sumner and McCormick, both supra.
The Secretary does not defend his position in response to the appellant's allegation that the
Secretary's position was not substantially justified, and the Secretary does not assert the affirmative
defense that special circumstances make an award unjust. See Cullens, supra (noting that "[o]nce
an appellant has alleged a lack of substantial justification, the burden shifts to the Secretary to prove
that VA was substantially justified in its administrative and litigation positions"); McCormick,
16 Vet.App. at 412 (determining that, "[u]nder the EAJA, the Secretary has affirmative defenses to
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a fee award, one of which is to demonstrate that his position at both the administrative (BVA) and
litigation (Court) stages was 'substantially justified'"); Chesser v. West, 11 Vet.App. 497, 502 (1998)
(noting that "'[s]pecial circumstances' is an affirmative defense as to which the government bears the
burden of raising and demonstrating that such special circumstances militate against an EAJA
award"); Cook v. Brown, 6 Vet.App. 226, 237 (1994) (concluding that Court need not address
whether Secretary's position was "substantially justified" when Secretary did not assert such a
defense but expressly conceded that issue), aff'd, 68 F.3d 447 (Fed. Cir. 1995). Hence, the only
remaining issue is the appropriate EAJA fee to be paid for the work of nonattorney-practitioner
Stewart, who, according to records of the Court, has been certified to practice before this Court under
the supervision of Mr. Stichman in accordance with subsection (b)(1) of Rule 46.
A. VBA § 403
New VBA § 403 provides:
The authority of the United States Court of Appeals for Veterans
Claims to award reasonable fees and expenses of attorneys under
section 2412(d) of title 28, United States Code, shall include authority
to award fees and expenses, in an amount determined appropriate
by the United States Court of Appeals for Veterans Claims, of
individuals admitted to practice before the Court as non[]attorney
practitioners under subsection (b) or (c) of Rule 46 of the Rules of
Practice and Procedure of the United States Court of Appeals for
Veterans Claims.
VBA § 403 (emphasis added).
Rule 46(b) and (c) allows nonattorney practitioners to practice before this Court under the
following circumstances:
(b) Admission of Nonattorney Practitioners to Practice. A
nonattorney of good moral character and repute who is --
(1) under the direct supervision (including presence at any oral
argument) of an attorney admitted to the bar of the Court, or
(2) employed by an organization which is chartered by
Congress, is recognized by the Secretary of Veterans Affairs for
claims representation, and provides a statement signed by the
organization's chief executive officer certifying to the employee's–
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(A) understanding of the procedures and jurisdiction
of the Court and of the nature, scope, and standards of its
judicial review; and
(B) proficiency to represent appellants before the
Court
may be admitted to practice before the Court upon filing with the
Clerk a completed application accompanied by the applicable fee
(payable by check or money order). In making the statement under
this paragraph, the chief executive officer should be aware that
knowledge of and competence in veterans law and the administrative
claims process does not in and of itself connote competence in
appellate practice and procedure.
(c) Appearance in a Particular Case. On motion and a
showing of good cause, the Court may permit any attorney or
nonattorney practitioner not admitted to practice before the Court, or
any other person in exceptional circumstances, to appear on behalf of
a party or amicus for the purposes of a particular case. Whenever a
person is admitted to practice under this subsection, the person will
be deemed to have conferred disciplinary jurisdiction upon the Court
for any alleged misconduct in the course of, in the preparation for, or
in connection with any proceeding in that case.
U.S. VET . APP . R. 46(b)(1), (b)(2), (c).
Rule 46 further requires that "[e]ach notice of appearance and pleading filed by a nonattorney
practitioner must include the name, address, and signature of the responsible supervising attorney
under subsection (b)(1) or the identification of the employing organization under subsection (b)(2)."
U.S. VET . APP . R. 46(d)(3). The Court has held that the work of attorney-supervised nonattorney
practitioners and attorney-supervised law students is "compensable under the EAJA at an appropriate
rate". McCracken v. Principi, 14 Vet.App. 269, 274 (2001) (citing Sandoval v. Brown, 9 Vet.App.
177, 181 (1996) (holding EAJA fees available for work of attorney-supervised law students)).
"'The starting point in interpreting a statute is its language.'" Lee (Raymond) v. West,
13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).
As this Court explained in Lee:
The "plain meaning [of a statute] must be given effect unless a 'literal
application of [the] statute [or regulation] will produce a result
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demonstrably at odds with the intention of its drafters.'" Gardner v.
Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner
v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd [sub nom. Brown v.
Gardner], 513 U.S. 115 . . . (1994); Fagan[ v. West], 13 Vet.App.
[48,] 52 [(1999)]; Curtis[ v. West], 11 Vet.App. [129,] 133 [(1998)].
"If the intent of Congress is clear, that is the end of the matter".
Skinner v. Brown, 27 F.3d 1571, 1572 (Fed. Cir. 1994) (quoting
Chevron, U.S.A., Inc. v. Natural Res[.] Def[.] Council, Inc., 467 U.S.
837, 842 . . . (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.).
Lee (Raymond), supra. Each "part or section of a statute should be construed in connection with
every other part or section so as to produce a harmonious whole." Meeks v. West, 12 Vet.App. 352,
354 (1999) (internal quotation and citation omitted); see also Cottle v. Principi, 14 Vet.App. 329,
334 (2001); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). Also, as the United States Supreme
Court stated in United States v. Nordic Village, "the settled rule [is] that a statute must, if possible,
be construed in such fashion that every word has some operative effect." Nordic Vill., 503 U.S. 30,
35 (1992); see Colautti v. Franklin, 439 U.S. 379, 392 (1979) (determining that it is an "elementary
canon of construction that a statute should be interpreted so as not to render one part inoperative").
Although, where Congress has by statute directly addressed an issue, the reviewing court "'must give
effect to the unambiguously expressed intent of Congress'", Cottle, supra (quoting Chevron,
467 U.S. at 842-43); see also Barnhart v. Walton, 535 U.S. 212, 217-18 (2002), where a statute is
ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Brown, 513 U.S. at 118;
see also Allen (Alfred) v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (applying Brown v. Gardner
principle to rule in appellant's favor on question of statutory interpretation).
As noted above, at the time of the representation in the instant case, Mr. Stewart was an
employee of the NVLSP, which is not a veterans service organization (VSO) chartered by Congress
as described in Rule 46(b)(2); Mr. Stewart was thus admitted under Rule 46(b)(1) to practice before
this Court "under the direct supervision . . . of an [admitted] attorney" – in this case, Mr. Stichman.
See U.S. VET . APP . R. 46(b)(1). Consistent with Rule 46(d)(3)'s requirement regarding a supervising
attorney's signature on the pleadings submitted by a supervised nonattorney practitioner,
Mr. Stewart's EAJA application was co-signed by Mr. Stichman, as his supervising attorney. See
McCracken, 14 Vet.App. at 272-74 (holding EAJA fees not available for work of nonattorney
10
practitioner admitted to practice under attorney supervision in accordance with Rule 46(b)(1) where
supervising attorney did not sign appellant's pleadings filed in appeal of Board decision).
The term "nonattorney practitioner" in section 403 includes those admitted to practice before
this Court pursuant to subsections (b)(1) or (b)(2) as well as those appearing under subsection (c) of
Rule 46, which provides for the appearance of a nonattorney practitioner for purposes of a particular
case without regard to attorney supervision. Hence, in order to read VBA § 403 so as to give effect
to all its parts (the references to all of subsection (b) as well as to subsection (c) of Rule 46), see
Nordic Vill., Colautti, Cottle, Meeks, and Talley, all supra, that provision must be read to permit this
Court to award EAJA fees "in an amount determined appropriate" for the practice before this Court
of both unsupervised nonattorney practitioners and supervised nonattorney practitioners, such as
Mr. Stewart.
B. Reasonable Fees
The Court must next determine what amount constitutes reasonable attorney fees in this case.
See 28 U.S.C. § 2412(d)(2)(A); Teten v. Principi, 16 Vet.App. 112, 118 (2002); Perry v. West,
11 Vet.App. 319, 327 (1998). "The Court has wide discretion in the award of attorney fees under
the EAJA." Chesser, 11 Vet.App. at 501 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983),
Chiu v. United States, 948 F.2d 711, 713 (2001), and Vidal v. Brown, 8 Vet.App. 488, 493 (1996)).
"[T]he 'product of reasonable hours times a reasonable rate' normally provides a 'reasonable'
attorney's fee." Blum, 465 U.S. at 897 (quoting Hensley, 461 U.S. at 433). In determining
reasonableness, the Court will consider whether the hours claimed are (1) unreasonable on their face;
(2) otherwise contraindicated by the factors for determining reasonableness itemized in Hensley,
461 U.S. at 430 n.3, or Ussery v. Brown, 10 Vet.App. 51, 53 (1997); or (3) persuasively opposed by
the Secretary. Chesser, 11 Vet.App. at 502.
Section 403 also addresses the issue of fee reasonableness and provides that nonattorney
practitioners may be awarded EAJA fees "in an amount determined appropriate by the United States
Court of Appeals for Veterans Claims." VBA § 403 (emphasis added). This clause provides this
Court with wide discretion in determining what fee is "appropriate" for the work of a particular
nonattorney practitioner.
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The Committees on Veterans' Affairs stated in their Explanatory Statement regarding the
final version of VBA § 403:
The Committees expect that in determining the amount of reasonable
fees payable to non[]attorney practitioners, the Court will apply the
usual rules applicable to fees for the work of other non[]attorneys
such as paralegals and law students based upon the prevailing market
rates for the kind and quality of the services furnished. 28 U.S.C.
§ 2412(d)(2)(A). See[] Sandoval[, supra].
148 CONG . REC. S11338 (daily ed. Feb. 18, 2002); 148 CONG . REC. H9006-07 (daily ed. Feb. 14,
2002).
As to determining the prevailing market rate for EAJA fees, in Blum, the U.S. Supreme Court
stated that reasonable attorney fees under the Civil Rights Attorneys Fees Award Act of 1976 were
to be "calculated according to the prevailing market rates in the relevant community, regardless
of whether plaintiff is represented by private or non-profit counsel." Blum, 465 U.S. at 895(emphasis added). It is clear that Supreme Court caselaw regarding various attorney-fee statutes
applies generally to the definition of reasonable fees under the EAJA. See Buckhannon Board &
Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 603 n.4 (2001) (noting
that Congress "has authorized the award of attorney's fees to the 'prevailing party' in numerous
statutes" and that the Supreme Court has "interpreted these fee-shifting provisions consistently");
Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002) (concluding that
Supreme Court's construction in Buckhannon, supra, of prevailing-party status "applies with equal
force and effect to the EAJA"), cert. denied, 123 S. Ct. 871 (2003); Thayer v. Principi, 15 Vet.App.
204, 210-11 (2001) (holding that Supreme Court's definition of prevailing party in Buckhannon,
supra, applied to the EAJA). Here, the "relevant community", as described in Blum, supra, is this
Court and its unique system where, under Rule 46(b), both unsupervised nonattorney practitioners
as well as nonattorney practitioners supervised by an attorney admitted to the bar of the Court may
represent a VA claimant (including the presentation of oral argument), see U.S. VET . APP . R. 46(b),
(c), (d), and, with respect to that representational function, their role is more closely akin to an
attorney than to a paralegal. As the Supreme Court stated in Blum:
In seeking some basis for a standard, courts properly have required
prevailing attorneys to justify the reasonableness of the requested rate
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or rates. To inform and assist the court in the exercise of its
discretion, the burden is on the fee applicant to produce satisfactory
evidence – in addition to the attorney's own affidavits – that the
requested rates are in line with those prevailing in the community
for similar services by lawyers of reasonably comparable skill,
experience, and reputation. A rate determined in this way is
normally deemed to be reasonable, and is referred to – for
convenience – as the prevailing market rate.
465 U.S. at 896 n.11 (emphasis added). The Supreme Court in Blum recognized that the "'quality
of [attorney] representation' . . . generally is reflected in the reasonable hourly rate" calculated
according to the prevailing market rate. Id. at 895, 898-99.
In Raney, the United States Court of Appeals for the Federal Circuit (Federal Circuit)
discussed a "satisfactory evidence" test for determining attorney fees and noted that "something more
than an attorney's own affidavit is required to establish the prevailing market rate for attorney[] fees."
Raney, 222 F.3d at 938. The Federal Circuit concluded that "in future cases, the trial court should
demand adequate proof from individuals familiar with the market of the community billing rate
charged by attorneys of equivalent skill and experience performing services of similar complexity."
Ibid. (emphasis added).
In Wilson I, the Court concluded that experience was not an appropriate factor to be
considered when determining the prevailing market rate for a nonattorney practitioner; the Court's
opinion there did not take into account the enactment of VBA § 403. In this regard, VBA § 403
requires a different outcome from that in Wilson I. Recognizing that the skill and experience of both
supervised and unsupervised nonattorney practitioners admitted to practice in this Court may be
exceptional, the Court will consider these factors for determining reasonable fees for these
practitioners. Furthermore, there is no indication in the language of VBA § 403 that suggests that
experience cannot be a factor in determining the "appropriate" EAJA fees; to the contrary, section
403 itself constitutes a recognition of the special role of nonattorney practitioners who practice
before this Court.
In the instant case, Mr. Stewart sets forth in his affidavit his extensive experience litigating
veterans' claims, including the following: (1) He previously worked for a Secretary-recognized VSO
for 25 years before retiring, and his duties in that position included being a supervisor; (2) he was
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admitted as a nonattorney practitioner before this Court in 1995 and has represented appellants in
over 200 cases on appeal; and (3) he is currently a senior litigation paralegal for the NVLSP. Appl.,
Exh. D. Consequently, the Court holds that under VBA § 403 an EAJA fee of $120 per hour for Mr.
Stewart is justified as a fee that is "reasonable" and "appropriate" based on his reputation, skill, and
special expertise and qualifications as an experienced advocate in veterans law. VBA § 403;
28 U.S.C. § 2412(d)(2)(A); see Blum, Raney, and Chesser, all supra; see also McCracken,
14 Vet.App. at 274; Sandoval, supra. The Court will therefore approve a fee for his services in the
amount of $120 per hour and grant the EAJA application. See Pentecost v. Principi, __ Vet.App.
__, No. 00-2083(E) (Sept. 24, 2003).
III. Conclusion
Upon consideration of the foregoing analysis and the pleadings of the parties, the Court
grants the appellant's EAJA application in full, in the amount of $2,647.15.
APPLICATION GRANTED.
Separate Views
STEINBERG, Judge: I am satisfied that the new provisions of VBA § 403 are applicable
to the award of EAJA fees for the attorney-supervised work of Mr. Stewart. I write separately to
discuss a possible conflict between the apparent plain meaning of the statutory language of VBA
§ 403 and the congressional intent expressed in the legislative history underlying the provision.
In accordance with VBA § 403, an unsupervised nonattorney practitioner who is an
employee of a recognized VSO that has been chartered by Congress (see U.S. Vet. App. R 46(b)(2)
(noting that nonattorney "employed by an organization which is chartered by congress" and
"recognized by the Secretary of Veterans Affairs for claim representation . . . may be admitted to
practice before the Court")) may now file an EAJA application without the signature of an attorney
and, as the following summary of legislative history shows, that change was the principal purpose
of Congress in enacting VBA § 403. In light of the supervising-attorney-sign-off requirement in
subsection (d)(3) of our Rule 46, however, this change could not apply to supervised nonattorney
practitioners, such as Mr. Stewart. U.S. VET . APP . R. 46(d)(3) ("[e]ach notice of appearance and
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pleading filed by a nonattorney practitioner must include the name, address, and signature of the
responsible supervising attorney under subsection (b)(1)"). Because of this difference between
nonattorney practitioners practicing in this Court under subsection (b)(1) and subsection (b)(2) of
Rule 46 in terms of attorney supervision and the sign-off requirement, I believe that the legislative
history of VBA § 403 should be examined to determine whether it demonstrates a clear and
unequivocal intent that this remedial provision not be applied to supervised nonattorney
practitioners. See In re Fee Agreement of Smith, 1 Vet.App. 492, 506 (1991) (Steinberg, J.,
concurring) (outlining caselaw holding that language of statute "'must yield to clear contrary
evidence of legislative intent'" (quoting Nat'l R.R. Passenger Corp. v. Passengers Ass'n,
414 U.S. 453, 458 (1974)) and concluding that "facially unambiguous language is not conclusive
because unequivocal, repeated, totally consistent, and highly authoritative legislative history provides
a clear expression of legislative intent to the contrary").
The legislative history of VBA § 403 focused primarily on EAJA fees for unsupervised
nonattorney practitioners who are employed by a recognized VSO that has been chartered by
Congress. The report of the Senate Committee on Veterans' Affairs and the Explanatory Statement
of the two Committees on Veterans' Affairs on the compromise agreement ultimately enacted as the
VBA both evidence clearly that the congressional intent underlying VBA § 403 was to eliminate the
attorney-sign-off requirement for EAJA applications to be submitted by an otherwise unsupervised
VSO-employed nonattorney practitioner. S. REP. NO . 107-234, at 19 (2002); 148 CONG . REC. H9006
(daily ed. Nov. 14, 2002); 148 CONG . REC. S11338 (daily ed. Nov. 18, 2002). The Senate
Committee report noted that the proposed change would "allow VSOs to be awarded fees under the
EAJA for representation provided to VA claimants by their employee non[]attorney practitioners
without the requirement that [the] attorney . . . sign the EAJA application"; however, neither that
report nor the Explanatory Statement addressed supervised non-VSO nonattorney practitioners. S.
REP. NO . 107-234, at 19. Indeed, the elimination of the sign-off requirement for unsupervised VSO
nonattorney practitioners was the stated purpose of section 4 of S. 2079, introduced on April 9, 2002,
by Senator Rockefeller, which bill formed the basis for section 503 of S. 2237 as reported by the
Senate Committee, S. REP. NO . 107-234, at 2 (noting that S. 2237 as amended "include[ed]
provisions from . . . S. 2079"), the provisions of which were identical to those enacted as VBA §
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403; Senator Rockefeller stated that under his bill "unsupervised non[]attorneys [would] be given
access to fee compensation under the EAJA[, which would allow] veterans organizations to represent
even more veterans." 148 CONG . REC. S2416 (daily ed. Apr. 9, 2002).
If sole reliance were to be placed on the above-stated purpose as evidencing the only
congressional intent, we could not apply VBA § 403 to an application submitted by a supervised
nonattorney practitioner practicing under Rule 46(b)(1), because Rule 46(d)(3) would not permit
such a pleading to be filed without the signature of a supervising attorney. Hence, we would have
to construe the statutory provision either as doing more than eliminating the attorney sign-off
requirement for unsupervised nonattorney practitioners employed by a VSO or construe the provision
as applicable only to eliminating that sign-off requirement notwithstanding the statutory language
of subsections (b)(1), (b)(2), and (c) of Rule 46. See Nat'l R.R. Passenger Corp. and In Re Fee
Agreement of Smith, both supra. The former interpretation is appropriate for two reasons. First, none
of the above legislative history suggests that removing the attorney sign-off requirement for
unsupervised nonattorney practitioners was the only intended effect of VBA § 403, even though it
might have been its primary purpose. Second, one piece of legislative history offers the broader
interpretation that includes both supervised and unsupervised nonattorney practitioners under VBA
§ 403: In a floor statement on November 14, 2002, on final passage of the compromise agreement
on S. 2237 that was thereafter enacted as the VBA, Representative Evans, the ranking minority
member of the House Committee on Veterans' Affairs, stated: "Under the bill, non[]attorneys who
are permitted to practice before the Court of . . . Appeals [for Veterans Claims] will be able to
qualify for fees under the [EAJA] even if they are not supervised by an attorney." 148 CONG . REC.
H9003 (daily ed. Nov. 14, 2002) (emphasis added).
Hence, notwithstanding the lack of articulated congressional intent in the legislative history
from the two authorizing committees to benefit supervised nonattorney practitioners, the full
legislative history, although generally pointing toward a more narrow purpose, does not contain the
kind of unequivocal and consistent "clear contrary evidence of legislative intent" that would be
necessary to countermand an essentially unambiguous statutory provision. Nat'l R.R. Passenger
Corp., supra; see In Re Fee Agreement of Smith, supra.
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Accordingly, as the Court's opinion holds, VBA § 403 should be applied so as to give effect
to all its parts, see United States v. Nordic Vill., 503 U.S. 30, 35 (1992); Colautti v. Franklin,
439 U.S. 379, 392 (1979); Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Meeks v. West,
12 Vet.App. 352, 354 (1999); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992), and in order to
resolve any interpretive doubt in favor of a result that would provide a more competitive EAJA fee
for a veteran's representative, see Brown v. Gardner, 513 U.S. 115, 118 (1994); Allen (Alfred) v.
Brown, 7 Vet.App. 439, 448 (1995). The result is, as the Court holds today, that VBA § 403 is
applicable to supervised nonattorney practitioners such as Mr. Stewart.
17