Cleary v. Brown

9 Vet. App. 201, 1996 U.S. Vet. App. LEXIS 398, 1996 WL 347607

• Court: United States Court of Appeals for Veterans Claims
• Decided: June 25, 1996
• Docket: No. 91-2006
• Status: Published

Opinions

ORDER

PER CURIAM.

On October 5, 1995, the Court, in a panel opinion, granted the appellant under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), fees for the merits of the appeal and for a portion of the time spent litigating the amount for fees. Cleary v. Brown, 8 Vet.App. 305 (1995). On October 26, 1995, counsel for the appellant filed a motion for reconsideration of the Court’s decision. On December .15, 1995, the Secretary filed a response to the appellant’s motion for reconsideration, questioning parts of the appellant’s fee application. At the direction of the Court, the appellant filed a reply which addressed the questions raised by the Secretary.

In his motion for reconsideration, the appellant raises three separate issues. First, he stated that of the 120.75 hours of work for which he sought an award of fees, 18 rather than 20 hours were for representation before the Board on remand for which fees were disallowed. It appears that both parties agree that a miscalculation occurred due to a typographical error in the appellant’s EAJA application. The Court will reconsider this issue and award an additional two hours of fee compensation.

The appellant also disagreed with the Court’s decision that he was entitled to only one-third of the 38.5 hours he requested for litigating entitlement to fees. The amount of the EAJA award was reduced from the amount requested because the appellant did not prevail on the disputed issue of postre-mand fees. See Commissioner, INS v. Jean, 496 U.S. 154, 163 n. 10, 110 S.Ct. 2316, 2321 n. 10, 110 L.Ed.2d 134 (1990) (“Fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”). The Court declines to reconsider the percentage of reduction in the appellant’s attorney fees.

Insofar as the motion seeks reconsideration of statements made by Judge Ivers in his separate concurring opinion, the motion is denied. A concurring view is not a proper subject for reconsideration by a panel, but is a matter left to the discretion of the individual member.

On consideration of the foregoing, it is

ORDERED that the motion for reconsideration is granted in part and denied in part. It is further

ORDERED that the appellant shall receive an additional two hours of fee compensation. It is further

ORDERED that a conference be scheduled and conducted by an attorney with the Court’s Central Legal Staff, at the convenience of the parties, in order to facilitate an agreement as to the amount of the monetary award.