Trade Publication Article

REPRESENTING VETERANS: How the VA May Be Liable for Your Attorney Fees

Riley, P Andrew, Smith, Ronald L

2013

Overview

The application process is relatively simple. Not every party who has litigated against the United States is entitled to an award of attorney fees and expenses. The first qualification is success on the merits. EAJA authorizes a \"prevailing party\" to recover attorney fees from the government, unless the court finds the government's position \"was substantially justified.\" 28 U.S.C. § 2412(d)(1)(A). An applicant is a prevailing party for EAJA purposes if that party established \"entitlement to some relief on the merits of his claims, either in the trial court or on appeal.\" Hanrahan v. Hampton, 446 U.S. 754, 757 (1980). An appellant attains prevailing party status when the appeal achieves \"some form of 'judicially sanctioned change in the legal relationship of the parties.'\" Cycholl v. Principi, 15 Vet. App. 355, 357 (2001) (quoting Sumner v. Principi, 15 Vet. App. 256, 260-61 (2001)). An appellant is a prevailing party in a case \"where the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency . .. without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court.\" Haipern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir. 2004) (quoting Former Emps. of Motorola Ceramic Prods, v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003)). To apply for EAJA fees, you must file an application and a supporting affidavit by lead counsel within 30 days after judgment in the action becomes final. 28 U.S.C. § 2412(d)(1)(B). When those 30 days begin to run depends on several factors. 38 U.S.C. § 7291. In the case of a JMR, the CAVC judgment is final on the date the court grants the joint motion. Bowers v. Brown, 8 Vet. App. 25, 27 (1995) (holding that in the case of a JMR, no separate judgment will be entered, and the 30-day period for filing an EAJA application \"commences to run the day following the entry of the order which 'constitutes the mandate' under Rule 41(b)\"). The timing of the EAJA application is significantly different when the CAVC decides the appeal in either a memorandum, i.e., a one-judge, or a panel decision. In either circumstance, the judgment will issue 21 days after the date of the decision, if no motion for reconsideration, rehearing, panel decision, or en banc review is filed. See U.S. Vet. App. R. 35. Entry of judgment begins the 60-day period during which either party may appeal to the Federal Circuit. U.S. Vet. App. R. 36. When the 60-day appeal period expires and neither party has appealed, only then does the 30-day period for filing a fee application begin to run. If there is an appeal to the Federal Circuit or a petition for certiorari to the Supreme Court, the application must await conclusion of those proceedings. 38 U.S.C. § 7292. No extensions of time are available for submitting an EAJA application. If fees are claimed for the work of more than one person, all time must be integrated chronologically. U.S. Vet. App. R. 39(f). There is no requirement that a lawyer have entered an appearance in the appeal in order to recover fees for time expended by that lawyer. If you chose to deduct or reduce time expended on the appeal, you should list that time in a column adjacent to the related time entry. Time expended but shown to have been deducted or reduced helps establish that you exercised \"billing judgment\" in claiming fees from the government and that the amount claimed is \"reasonable.\" See 28 U.S.C. § 2412(b) (providing that \"a court may award reasonable fees\"); Baldridge v. Nicholson, 19 Vet. App. 227, 234 (2005) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)) (\"[A]n applicant for EAJA fees must treat the government as though it were a private client by exercising the same kind of billing judgment that an attorney would use in preparing a billing statement for a private client.\"). Time spent prepare ing and seeking an extension of time due to your needs is not reimbursable under the EAJA. See Hensley v. Principi, 16 Vet. App. 491, 499 (2002) (reducing attorneytime hours where, \"had the appellant's counsel more efficiently managed his workload,\" extensions of time might not have been necessary). Hensley v. Principi suggests that extensions shown to have resulted from the appellee's conduct may be reimbursable. See id. Likewise, secretarial time does not qualify for reimbursement. The CPI that should be used for an EAJA fee application can be found on the website for the Bureau of Labor Statistics (BLS) at www.bls.gov. On the BLS website, select \"Subjects,\" then \"Consumer Price Index,\" and finally \"CPI Databases.\" Then select \"Top Picks\" in the row labeled \"All Urban Consumers.\" On the next page, select your area and press \"Retrieve Data.\" To find the appropriate CPI for your calculation, select the rate listed under the month and year you prepared the opening brief or JMR. This will be considered the midpoint for the fee calculation. If no CPI is listed for that month, use the CPI from the closest prior month. For example, if you are located in the San Francisco area and you wrote the opening brief in March 2013, your CPI is 242.677 from the CPI listed under February 2013. Next determine the CPI for March 1996 by going to \"Change Output Options\" near the top of the page, selecting 1996 in the \"From\" dropdown box, and pressing the blue \"GO\" button. Find the CPI for March 1996 from the page then displayed (152.9 for the San Francisco area). With this information, you can calculate the cost-of-living adjusted hourly rate for the fee application using the following formula:

• Publisher: American Bar Association
• Subject: Affidavits / Agreements / Applications / Attorneys / Federal court decisions / Fees & charges / Legal fees / State court decisions / Veterans