Abbey v. Principi , 2002 U.S. Vet. App. LEXIS 1000 ( 2002 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 01-501
DANIEL E. ABBEY , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.
ORDER
On January 17, 2002, the appellant filed, through counsel, an application for an award of
attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA).
On April 25, 2002, the Court issued an order in this case staying proceedings pending disposition
of Wilson v. Principi, No. 01-691. Abbey v. Principi, No. 01-501, 2002 WL 745958 (Vet. App.
Apr. 25, 2002). Wilson was decided on December 12, 2002. Wilson, __ Vet.App. __, No. 01-691,
2002 WL 31770890 (Dec. 12, 2002). In Wilson, the Court determined, based on the evidence
presented there, that $90 per hour was the prevailing market rate for the work of the appellant's non-
attorney practitioner in that case and awarded attorney fees based on that rate for his work. Id. at __,
slip op. at 4, 7-9, 2002 WL 31770890, at *3, 5-6. The sole matter in dispute in the instant case is
what constitutes a reasonable hourly rate, based on the evidence presented here, for an EAJA
attorney fee for the work of the same non-attorney practitioner who represented the appellant in
Wilson.
Upon consideration of the foregoing, it is
ORDERED that the April 25, 2002, stay is lifted. It is further
ORDERED that, not later than 30 days after the date of this order, the appellant file, and
serve on the Secretary, a memorandum (which may present additional evidence) that explains why
the prevailing market rate in this case should not be $90 per hour. See Wilson, __ Vet.App. at __,
slip op. at 7-8, 2002 WL 31770890, at *5; id. at __, slip op. at 10-13, 2002 WL 31770890, at *7-10
(Kramer, C.J., dissenting). It is further
ORDERED that, not later than 20 days after service of the appellant's memorandum, the
Secretary file, and serve on the appellant, a response. Not later than 15 days after service of the
Secretary's response, the appellant may file a reply.
DATED: December 20, 2002 PER CURIAM.