Chesser v. West

11 Vet. App. 497, 1998 U.S. Vet. App. LEXIS 1229, 1998 WL 713808
United States Court of Appeals for Veterans Claims·Decided October 14, 1998·No. No. 96-688·Published·Cited by 65 cases

Opinion

STEINBERG, Judge:

The appellant, Vietnam combat veteran Gary M. Chesser, appealed through pro bono counsel Peter J. Wymes, a February 27, 1996, decision of the Board of Veterans’ Appeals (Board or BVA) that had found no clear and unmistakable error (CUE) (under 38 C.F.R. § 3.105(a)) in a November 1969 Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) decision. On July 21, 1997, the parties filed a joint motion for remand of the CUE issue and to dismiss the appeal as to the remaining issues; the Clerk of the Court granted the joint motion in an unpublished order on July 29, 1997. The appellant then filed a timely application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). He has since filed two supplemental motions to amend the application. For the reasons that follow, the Court will grant the amended application in part and deny it in part.

I. Background

On August 11, 1997, the appellant filed an application for attorney fees and expenses totaling $15,619.99 under the EAJA; the appellant claimed 119.5 hours of attorney fees at $128.55 per hour ($15,361.73) and $258.26 in expenses. On September 9, 1997, the Secretary filed a motion for an extension of time to file his response to the appellant’s EAJA application. On September 11, 1997, the appellant filed a motion that sought to have his EAJA application considered as unopposed, and on September 12, 1997, he filed an opposition to the Secretary’s motion for an extension of time. On September 22, 1997, the Court granted the Secretary’s motion and held in abeyance the appellant’s motion to have his application considered as unopposed. The Secretary filed his response on October 24, 1997. On December 5, 1997, the Court granted a motion by the National Organization of Veterans’ Advocates, Inc. [499] (NOVA), to file a brief as amicus curiae. The appellant filed his reply to the Secretary’s response on January 9, 1998, and on January 20,1998, the Court granted a motion by the National Veterans Legal Services Program (NVLSP) to file a brief as amicus curiae. NOVA’s brief was filed on January 28, 1998, and NVLSP’s brief was filed on February 3, 1998. On April 22, 1998, Michael E. Wildhaber, Esq., entered an appearance on behalf of the appellant. On June 2, 1998, the Court held oral argument on the EAJA application.

Subsequent to oral argument, the Court concluded that additional pleadings were needed. On June 18, 1998, the Court ordered the appellant to file a supplement to his EAJA application that more particularly itemized the hours expended on particular tasks and explained whether, as an exercise in billing judgment, any reduction had been made in the hours claimed (see Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Chesser v. West, 11 Vet.App. 247, 249 (1998). The Court also sought any supplement to the EAJA application seeking fees for work performed after the filing of the initial application, and permitted a reply by the Secretary. Ibid.

The appellant filed his response on July 2, 1998. In his response, he stated that the total number of hours expended by his attorney was 129.6 and that 10 hours had been eliminated, as an exercise in billing judgment, from the original EAJA application. The appellant also eliminated an additional 14.4 hours in his response, bringing the total number of hours claimed to 105.1. The appellant thus sought $13,510.61 in EAJA fees at this point. On July 17, 1998, he filed a supplement to his EAJA application and identified an additional 160.85 hours expended by attorney Wymes and 52.75 hours expended by attorney Wildhaber (totaling 213.6 hours) on EAJA matters subsequent to the filing of the initial application. As an exercise of billing judgment, that total was reduced by approximately 50 hours, or about 23 percent, to 163.825, at a rate of $129.98 per hour, for a total of $21,293.97 in attorney fees related to the litigation over the EAJA application. The appellant also sought an additional $689.56 in expenses. The total EAJA fees claimed is thus $34,804.58, and the total claimed for expenses is $947.82. On August 3, 1998, the Secretary filed a surres-ponse to the appellant’s response and supplements; in his surresponse, the Secretary argues that 19.14 of the hours of attorney fees claimed by the appellant for researching issues “unrelated” to those on appeal were expended in unproductive legal research and that the fees for fees should be reduced by 50% due to special circumstances. The appellant filed a motion seeking an opportunity to respond to the Secretary’s surresponse, and, on August 6,1998, the Court denied that motion.

II. Analysis

This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F) as amended by section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). The appellant’s August 11, 1997, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and has satisfied any jurisdictional content requirements that apply thereunder, because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is a “prevailing party” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(B); Stillwell v. Brown, 6 Vet.App. 291, 300-01 (1994)); (2) a showing, by attaching a declaration stating that at the time that his appeal was filed his net worth was less than $2,000,000, so that he is a party eligible for an award under the EAJA (28 U.S.C. § 2412(d)(2)(B)); (3) an assertion that the position of the Secretary was not substantially justified (28 U.S.C. § 2412(d)(1)(A)); and (4) an itemized statement of the fees sought (now totaling $34,-804.58 in fees and $947.82 in expenses) supported by affidavits from the appellant’s counsels. See Bazalo v. Brown, 9 Vet.App. 304, 310 (1996) (en banc), rev’d sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir. 1998) (concluding that showing of net worth not jurisdictional requirement).

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Chesser v. West, 11 Vet. App. 497, 1998 U.S. Vet. App. LEXIS 1229, 1998 WL 713808 (Cal. 1998).

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