Abbey v. Principi

16 Vet. App. 543, 2002 U.S. Vet. App. LEXIS 1000, 2002 WL 31854882

Opinion

ORDER

PER CURIAM:

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, 16 Vet.App. 509 (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 511, 513-15. 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, 16 Vet.App. at 513-14; id. at 513-18 (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.