McCracken v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 99-1555
EDWARD R. MCCRACKEN , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appellant's Application for Attorney Fees and Expenses
(Decided February 12, 2001 )
Gordon W. Sargent and William W. McLemore (non-attorney practitioner), both of Austin,
Texas, were on the pleadings for the appellant.
Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Joan Moriarty,
Deputy Assistant General Counsel; and Ari Nazarov, all of Washington, D.C., were on the pleading
for the appellee.
Before FARLEY, IVERS, and STEINBERG, Judges.
STEINBERG, Judge. Before this Court is the appellant's August 25, 2000, application for
attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). For the reasons
that follow, the Court will deny the EAJA application.
I. Background
In the underlying case, the appellant, veteran Edward R. McCracken, appealed a May 21,
1999, decision of the Board of Veterans' Appeals (BVA) that denied a rating in excess of 10% for
a Department of Veterans Affairs (VA) service-connected right-ear hearing loss and rejected the
appellant's claim of clear and unmistakable error (CUE) in a May 1986 VA regional office decision
denying VA service connection for bilateral tinnitus. On July 28, 2000, the Secretary and the
appellant filed a joint motion for partial remand and partial affirmance. On August 8, 2000, the
Court granted this motion, remanded the rating-increase claim, and dismissed the CUE claim.
On August 25, 2000, the appellant applied for attorney fees under the EAJA in connection
with the legal representation provided to him by William W. McLemore, a non-attorney practitioner.
In July 1996, Mr. McLemore was admitted to practice in this Court under the direct supervision of
Gordon W. Sargent, an attorney admitted to the bar of this Court. See U.S. VET . APP . R. 46(b)(1).
On September 13, 1999, Mr. McLemore filed a Notice of Appearance in this case, with Mr. Sargent
signing that Notice as the "Supervising Attorney". Also entering an appearance at that time was
Ernest M. Harper, another non-attorney practitioner; however, Mr. Harper never signed any paper
or pleading submitted to this Court on behalf of the appellant, and his involvement does not appear
to be an issue in this case. At the same time that Mr. McLemore filed the Notice of Appearance, he
also filed with the Court a "Pro Bono Agreement to Engage an Attorney or Law Firm". In this
agreement, the appellant engaged as his representatives Mr. Sargent "and associates".
The appellant's EAJA application was submitted through Mr. McLemore alone, and Mr.
Sargent's name and signature do not appear on the application. In this application, Mr. McLemore
referred to himself as the "undersigned attorney", signed the application as "Representative for the
Appellant", and requested attorney fees for 38.5 hours billed at a rate of $137.38 per hour (the
application cited the rate for attorneys provided under 28 U.S.C. § 2412(D)(2)(A) adjusted by the
Consumer Price Index for all Urban Consumers (CPIU) applicable in the Dallas/Ft. Worth area) for
a total fee of $5,289.13. The itemized list of services attached to the application includes only a
single entry reflecting Mr. Sargent's involvement in the appellant's case. This entry, dated September
3, 1999, indicates that Mr. Sargent was contacted to obtain his "sig[nature] on forms". After the
Secretary responded in opposition to the application, the appellant filed a reply signed by Mr.
Sargent. In this reply, Mr. Sargent avers that he "directly supervised Mr. McLemore's work as a non-
attorney".
Other than on this reply and on the Notice of Appearance, Mr. Sargent's signature does not
appear on any of the pleadings that were filed on behalf of the veteran in this case. Mr. McLemore
alone signed all of the other pleadings, including the previously described joint motion for remand.
Effective May 1, 1999, Rule 46(d)(3) of this Court's Rules of Practice and Procedure (Rules)
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required that a supervising attorney, such as Mr. Sargent, sign all papers filed by a non-attorney
practitioner. After July 31, 1994, and prior to May 1, 1999, the same requirement was set forth in
Rule 46(d)(1).
II. Analysis
This case presents two main questions: (1) Whether legal services performed by a non-
attorney practitioner, admitted to practice in this Court under the supervision of an attorney, are
compensable under the EAJA; and (2) if so, do the legal services performed on behalf of the veteran
in this case qualify for EAJA reimbursement on this basis?
This Court's Rule 46(b) permits non-attorney practitioners to practice before this Court under
two circumstances and provides:
(b) Admission of Non-attorney Practitioners to Practice. A non-attorney
of good moral character and repute
(1) under the direct supervision 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:
(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 prescribed fee (payable by check or money
order). In making the certification in subparagraph (2), 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.
This Court has held that services performed by a non-attorney practitioner who is employed
by a national veterans service organization, works without an attorney's supervision, and is admitted
to practice in this Court under the authority of Rule 46(b)(2), do not give rise to attorney-fee
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eligibility under the EAJA. See Cook v. Brown, 6 Vet.App. 226, 230-33 (1994), aff'd, 68 F.3d 447,
453 (Fed. Cir. 1995). However, in so holding, both this Court and the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) were careful to distinguish the situation of the unsupervised non-
attorney practitioner from the situation where services are performed by a non-attorney under
attorney supervision. Moreover, both courts cited a number of examples where other courts have
deemed services performed by a non-attorney under attorney supervision to qualify for attorney fees
under the EAJA or an analogous fee-shifting statute. Cook, 6 Vet.App. at 230 (citing, inter alia,
Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (deeming it "self-evident" that reasonable attorney
fee under Civil Rights Attorney's Fees Awards Act of 1976 compensates work of paralegals as well
as attorneys); Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988) (approving EAJA attorney-fee
award at an hourly rate of $40 for law clerk and paralegal work performed under attorney
supervision); and DiGennaro v. Bowen, 666 F. Supp. 426 (E.D. N.Y. 1987) (awarding EAJA fees
at a rate of $25 per hour for work of attorney-supervised law students)); see also Cook, 68 F.3d at
453 (citing Jenkins and Jean, supra, as well as West Virginia Univ. Hospitals, Inc. v. Casey, 499
U.S. 83, 99 (1991); Miller v. Alamo, 983 F.2d 856, 862 (8th Cir. 1993); and Jordan v. U.S. Dep't of
Justice, 691 F.2d 514 (D.C. Cir. 1982)).
Acknowledging some of the same authority, this Court more recently held that EAJA fees
are available for work performed by attorney-supervised law students. Sandoval v. Brown,
9 Vet.App. 177, 181 (1996) (citing Jordan, supra, as well as Lindner v. Sullivan, 799 F. Supp. 888,
893 (N.D. Ill. 1992); and Williams v. Bowen, 684 F. Supp. 1305, 1307-08 (E.D. Pa. 1988) (EAJA
fees for law student assistance at a rate of $40 per hour)). We are unable to distinguish the situation
of the non-attorney practitioner supervised by an attorney pursuant to Rule 46(b)(1) from the
situation where other non-attorneys, such as law students, perform legal services under an attorney's
supervision. Accordingly, we answer the first question above in the affirmative and hold that
reimbursement under the EAJA may be awarded for services performed by a non-attorney
practitioner under an attorney's supervision. As this Court explained in Sandoval, the appropriate
hourly rate for such fees is either the prevailing market rate for such services or the rate set forth in
28 U.S.C. § 2412(d)(2)(A), adjusted by the applicable CPIU, "whichever is lower". Sandoval,
9 Vet.App. at 181 (citing Elcyzyn v. Brown, 7 Vet.App. 170, 181 (1994)). Hence, when work
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performed by a non-attorney practitioner qualifies for EAJA fees, the hourly rate for such fees is not
necessarily based on the statutory rate for attorneys, as was requested by the appellant in this case.
Before discussing the second major question -- whether the services performed in this case
qualify for attorney fees -- there is a preliminary issue requiring discussion. As previously indicated,
the EAJA application in this case was submitted on behalf of the appellant through the non-attorney
representative, Mr. McLemore. Mr. Sargent, the supervising attorney, did not sign the application.
This Court has established two requirements as to the status of an attorney for whose representation
a party seeks EAJA fees. First, an EAJA application is not valid and will not be recognized by this
Court if "the attorney filing it has not filed a notice of appearance with the Court"; and, second, only
if this "attorney has been empowered by an agreement -- which creates an attorney-client relationship
-- to do work on behalf of the appellant" may services performed by this attorney qualify for EAJA
fees. Similes v. West, 11 Vet.App. 115, 120 (1998) (emphasis added). Because there is an agreement
between Mr. Sargent ("and associates") and the veteran creating an attorney-client relationship, i.e.,
the September 1999 Pro Bono Agreement, there is no question as to the second requirement.
However, as to the first requirement, no attorney submitted the EAJA application.
We need not resolve the question of whether a non-attorney representative may file an EAJA
application, however, for even if both of the Similes criteria are satisfied, we hold, based on the
analysis set forth below, that the appellant cannot prevail and that his EAJA application must be
denied. That is so because the appellant has failed to produce evidence sufficient to show that Mr.
Sargent acted as a supervising attorney so as to avoid the restriction imposed by Cook, where we
determined that the services of unsupervised non-attorney practitioners are not eligible for
reimbursement under the EAJA. See 28 U.S.C. § 2412(d)(1)(B) ("party seeking an award of fees"
under the EAJA generally has burden of submitting application that shows elements necessary for
basic EAJA eligibility); Fritz v. West, 13 Vet.App. 190, 195 (1995) (same); Chesser v. West,
11 Vet.App. 497, 499 (1998) (same).
As previously noted, Mr. McLemore was admitted to practice in this Court under the direct
supervision of Mr. Sargent in accordance with Rule 46(b)(1). At the time that Mr. McLemore was
admitted, Mr. Sargent signed a statement accompanying Mr. McLemore's application for admission
that certified that McLemore would be "directly supervised by me in representing appellants before
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the Court". We would ordinarily accept a representation made to the Court by a member of the
Court's bar as an officer of the Court and would thus ordinarily presume that when such an attorney
certifies that he will supervise a non-attorney practitioner, such supervision will take place in any
particular case. See Wagner v. Henman, 902 F.2d 578, 581 (7th Cir. 1990) ("attorneys, as officers
of the court, are presumptively trustworthy absent specific evidence of untrustworthiness") (citing
Wagner v. Williford, 804 F.2d 1012, 1017 (7th Cir. 1986), and McKinney v. Meese, 831 F.2d 728,
731 (7th Cir. 1987)). However, after the Notice of Appeal was filed and before the EAJA
application was filed, Mr. Sargent failed to sign any pleadings submitted on the veteran's behalf,
including the motion for joint remand that led to the remand in this case and the EAJA application
itself. This failure is especially significant because Rule 46(d)(3) clearly required his signature on
such pleadings. This rule was adopted to help ensure that non-attorney practitioners are supervised
by an attorney in accordance with our rules, especially where the non-attorney may have no ongoing
business relationship with the "supervising attorney". Consequently, we consider that the attorney's
failure to sign these pleadings requires that we not accept without further scrutiny his after-the-fact
assertion regarding such supervision. Such scrutiny reveals virtually no indication of Mr. Sargent's
involvement in this case, including the work described in the itemized list of services for which the
EAJA attorney fees are being claimed.
Alternatively, put another way, we find that the evidence of irregular conduct by the attorney
-- in not signing all papers in compliance with Rule 46(d)(3) -- is sufficient to create a presumption
of irregularity (that is, that the requisite supervision did not occur) that the appellant must overcome
by a preponderance of the evidence. Cf. Warfield v. Gober, 10 Vet.App. 483, 486 (1997)
("presumption [of official regularity may also] operate[ ] in reverse. If [the act] appears irregular,
it is irregular, and the burden shifts to the proponent to show the contrary") (quoting United States
v. Roses, Inc., 706 F.2d 1563, 1567 (Fed. Cir. 1983))); Ashley v. Derwinski, 2 Vet.App. 62, 66
(1992). Quite obviously, the appellant has failed to meet any such evidentiary burden, as the above
analysis of the evidence shows.
The responsibility of a supervising attorney is a serious one, and that is why the Court added
Rule 46(d)(3); Mr. Sargent repeatedly violated that rule in this case. Although Mr. Sargent's
averment in the veteran's reply to the Secretary's response to the EAJA application that he "directly
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supervised Mr. McLemore's work as a non-attorney" provides a sufficient basis for us to conclude
that referral of the matter for disciplinary investigation is not required here, see U.S. VET . APP . R.
ADM . & PRAC. 2(d)(1); 9 Vet.App. LVII, it does not suffice to carry the appellant's burden of
demonstrating that there was a proper EAJA filing in this case, given all the adverse evidence
involved here. Moreover, nonreferral here does not mean that a continuing violation of Rule
46(d)(3) by Mr. Sargent will not yield a referral in the future. Additionally, the Court notes that an
attorney's failure to discharge supervisory responsibilities might be the subject of an adverse action
by a client against an attorney. See Townsend v. Brown, 9 Vet.App. 258, 260 (1996) (per curiam
order) (citing Robinson v. U.S. Navy, 342 F. Supp. 381, 383 (E.D. Pa. 1972)); see also Brown
(James L.) v. Brown, 8 Vet.App. 40, 43 (1995); see also Shields v. Brown, 8 Vet.App. 346, 351
(1995).
Finally, we note that Mr. McLemore's July 1996 application to practice before our Court gave
his mailing address as "P.O. Box 1748, c/o Travis County Veterans Service Office, Austin, Texas
78767", and listed his present or last employer as the "Travis County Commissioners Court". We
also note that the Pro Bono Agreement in this case does not refer to Mr. McLemore specifically or
to any representative being provided by any governmental entity to represent the veteran. To the
extent that Mr. McLemore is acting as an employee of the State of Texas, or of Travis County, in
representing veterans before this Court, a question appears to be raised as to whether the EAJA fees
sought here, if paid, would be the property of the State or County. Cf. Similes, 11 Vet.App. at 117,
120 (EAJA fees awarded to Nevada Indian Rural Legal Services based on services provided by the
director of that organization). That is a question that need not be addressed in light of our denial of
the EAJA application in this case.
III. Conclusion
Although we hold that services performed by a non-attorney practitioner, supervised by an
attorney and admitted to practice in this Court under Rule 46(b)(1), are compensable under the EAJA
at an appropriate rate, see Sandoval, supra, we hold that EAJA fees are not available in this case
because the evidence is insufficient to establish that the legal services performed by Mr. McLemore
were provided under the supervision of an attorney. See Cook, supra.
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APPLICATION DENIED.
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