Swiney v. Gober

14 Vet. App. 65, 2000 U.S. Vet. App. LEXIS 809, 2000 WL 1160705
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 14, 2000
Docket96-302
StatusPublished
Cited by22 cases

This text of 14 Vet. App. 65 (Swiney v. Gober) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swiney v. Gober, 14 Vet. App. 65, 2000 U.S. Vet. App. LEXIS 809, 2000 WL 1160705 (Cal. 2000).

Opinions

STEINBERG, Judge:

Before the Court is the appellant’s December 2, 1998, application, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), for attorney fees and expenses in the amount of $32,534.44, and his March 26, 1999, supplemental EAJA application for attorney fees in the amount of $718.75. For the reasons that follow, the Court will grant the 1998 EAJA application in a reduced amount and grant the 1999 supplemental EAJA application in full.

I. Relevant Background

The appellant appealed from two decisions of the Board of Veterans’ Appeals (Board or BVA), both dated March 22, 1996. In the first decision, the Board denied a schedular rating in excess of 50% for cluster headaches, denied a rating of total disability based on individual unem-ployability (TDIU), and determined that the veteran was not entitled to an extras-chedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999). In the second decision, the Board determined that it did not have jurisdiction to review a denial by a Department of Veterans Affairs (VA) regional office (RO) of the appellant’s claim for eligibility for fee-basis-outpatient care and dismissed that appeal. See Swiney v. West, No. 96-302, 1998 WL 637212, at *1 (Vet.App. Aug.31, 1998).

On December 13, 1996, the Secretary filed a motion to remand as to the TDIU and extraschedular-rating claims, to deem abandoned the schedular-rating-increase claim, and to stay the proceedings pending a decision in Quigley v. West, No. 94-1187, 1998 WL 43004 (Vet.App. Jan.9, 1998), as to BVA jurisdiction to consider claims for fee-basis care. On December 16, 1996, the appellant filed a motion to consolidate this appeal with that in Quigley. On December 23, 1996, the Court, by single-judge order, denied the appellant’s motion to consolidate (stating that the appellant could seek leave to file an amicus brief in Quigley and/or the similar case of Webb v. West, No. 96-502, 1998 WL 778288 (Vet.App. Oct.15, 1998)), held in abeyance the Secretary’s motion to remand, and granted the Secretary’s motion to stay proceedings. On December 27, 1996, the appellant filed a response, opposing the Secretary’s motion to remand as to the rating claims. The Court then modified its December 23, 1996, order, inter alia, to hold in abeyance the Secretary’s motion to stay proceedings.

On January 7, 1997, the appellant filed in the appeal of Quigley, sttpra, a motion for leave to file on behalf of himself and the appellant in Webb, supra, an amicus brief on the issue of BVA jurisdiction to review RO denials of eligibility for fee-basis care. After the Court granted that motion in Quigley, the appellant filed in that case an amicus brief and a notice of supplemental authorities.

On March 19, 1997, the Court denied the Secretary’s motion to remand as to the TDIU and extraschedular-rating claims [68]*68and granted the Secretary’s motion to stay proceedings as to the fee-basis-care issue pending a decision in Quigley. Briefing proceeded on the rating issues; the appellant filed a brief and a reply brief, and the Secretary filed a brief. On November 19, 1997, the Court dissolved the stay as to Quigley. The appellant then filed a supplemental brief, incorporating the arguments made in the Quigley amicus brief, and a reply brief, and the Secretary filed a brief. Thereafter, on May 12, 1998, the Court issued an opinion in Meakin v. West, which decided the fee-basis-care issue in favor of the veteran. Meakin, 11 Vet.App. 183 (1998). The appellant then filed an unopposed motion to reverse as to that issue. On August 31, 1998, in a single-judge order, the Court deemed abandoned the schedular-rating-inerease claim; vacated the BVA decision as to the TDIU and extraschedular-rating claims, on the grounds that the Board had failed to apply and had incorrectly applied, respectively, pertinent regulations; and reversed the BVA decision as to the fee-basis-eare issue and remanded those matters for readjudi-cation under the appropriate law and regulation. Swiney, 1998 WL 637212, at *1, *3.

On December 2, 1998, the appellant filed a timely application for EAJA fees and expenses, in which he stated that he was a prevailing party and was eligible for an award, and alleged that the Secretary was not substantially justified. The appellant’s counsel’s itemization of services rendered included 259.05 total hours for a total fee request of $32,381.00 and expenses of $153.44. The Secretary argues in response only that the amount of the award should be reduced by $7,000.00 because the 56 hours spent in preparing the Quig-ley amicus brief was unreasonable and should thus be denied. On March 26, 1999, the appellant filed a reply, in which he requests additional attorney fees of $718.75 for 5.75 hours required for the preparation of that reply. On October 25, 1999, the Court ordered the appellant to file a supplemental brief as to his status as a prevailing party and the Secretary to file a supplemental brief as to substantial justification. Both parties responded to that Court order and then replied to each other’s supplemental briefs.

II. Analysis

A. Jurisdiction

This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F). The appellant’s December 2, 1998, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies any jurisdictional content requirements that apply, because the application contains the following: A showing that he is a prevailing party by virtue of the Court’s reversal and remand action and that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; an allegation that the position of the Secretary was not substantially justified; and an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Fritz v. West, 13 Vet.App. 190, 195 (1999); Chesser v. West, 11 Vet.App. 497, 499 (1998); Bazalo v. Brown, 9 Vet.App. 304, 308 (1996) (en banc), rev’d on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998) (holding that “statement that [appellant] is a prevailing ‘party’ satisfies eligibility requirement for jurisdictional purposes”).

B. Prevailing Party

As to the merits of this application, the Secretary, in his February 24, 1999, response to the appellant’s EAJA application, specifically concedes that the appellant was a prevailing party. Response (Resp.) at 3. Nonetheless, as noted above, the Court ordered the appellant to provide supplemental briefing on this issue, and allowed the Secretary to file a response; therefore, we will address prevailing party status.

As a general rule, the “prevailing party requirement of the EAJA is satisfied [69]

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Cite This Page — Counsel Stack

Bluebook (online)
14 Vet. App. 65, 2000 U.S. Vet. App. LEXIS 809, 2000 WL 1160705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swiney-v-gober-cavc-2000.