8 Vet. App. 5 | Vet. App. | 1995
ORDER
On consideration of the motion to substitute Michael Cohen as a party to the appellant’s application for attorney fees under the Equal Access to Justice Act (EAJA), the appellee’s motion to compel production of contemporaneously prepared time sheets, and the appellant’s opposition thereto, and for the reasons set forth below, it is
ORDERED that the motion to substitute Michael Cohen as the appellant in this matter is granted. It is further
ORDERED that the motion to compel production of contemporaneously prepared time sheets is denied. It is further
ORDERED that, within 20 days of the date of this order, the Secretary shall submit a response to the application for fees.
PER CURIAM: On January 27, 1993, the Court granted the Secretary’s motion to remand the underlying case to the Board of Veterans’ Appeals. Jurisdiction was retained for the sole purpose of preserving the appellant’s potential right to file a petition for attorney fees under EAJA. An application for award of attorney fees was filed on June 17, 1994.
I. Substitution of Parties
On September 1,1994, counsel for the appellant filed a motion to substitute Michael Cohen, the appellant’s adult son, because the appellant died on August 5, 1994. See U.S.Vet.App.R. 43. The Court requested that the parties submit supplemental memoranda regarding whether an application for EAJA fees may be maintained after the death of the appellant. In Landicho v. Brown, 7 Vet.App. 42 (1994), a three-judge panel of this Court held that the death of a veteran during the pendency of an appeal divests the Court of jurisdiction to adjudicate a substituted survivor’s accrued benefits claim. Preliminarily, we conclude that Landicho does not control our analysis here. In that case, the Court considered its jurisdiction under chapter 11, title 38, United States Code, and held that the “overall statutory scheme ... creates a chapter 11 disability compensation benefit that does not survive the eligible veteran’s death.” Id. at 47. Additionally, the Court noted that there are separate procedures available under title 38 by which qualified survivors of veterans may seek certain other benefits. Ibid; see 38
EAJA provides that
a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of the action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The statute is silent with regard to whether an EAJA claim survives the death of the aggrieved party. Generally, however, a cause of action based on a statute having a remedial purpose, such as EAJA, will be held to have survived the death of a party. See Schreiber v. Sharpless, 110 U.S. 76, 80, 3 S.Ct. 423, 424, 28 L.Ed. 65 (1884) (holding that, where a party has died, a penal statute abates while a remedial statute survives).
The legislative history and purpose of EAJA support allowance of substitution in such cases. As the Supreme Court has stated, “Congress passed the EAJA in response to its concern that persons ‘may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights.’ ” Sullivan v. Hudson, 490 U.S. 877, 883, 109 S.Ct. 2248, 2253, 104 L.Ed.2d 941 (1989) (quoting EAJA, Pub.L. No. 96-481, § 202, 94 Stat. 2325 (1980) (codified at 5 U.S.C. § 504 note)). In construing the requirements of the statute, awards should be available where the burden of attorney fees would have deterred the litigation challenging the government’s actions. S.E.C. v. Comserv Corp., 908 F.2d 1407, 1415-16 (8th Cir.1990). Additionally, the District Court for the Eastern District of Pennsylvania has allowed substitution of parties in an EAJA matter, after rejecting the “unique government contention that the right to a legal fee under [EAJA] dies with the aggrieved party.” Hoffman v. Heckler, 656 F.Supp. 1136, 1137 (E.D.Pa.1987). The parties cite no authority for a holding contrary to that in Hoffman, and we can find none. In support of its decision, the district court stated, “Precluding attorneys from receiving attorney’s fees if their clients died before the filing of attorney’s fees motions would discourage attorneys from representing sick people entitled to benefits.” Ibid. It is equally true, in the context of veterans benefits eases, that precluding the award of EAJA fees where a veteran has died would discourage representation of disabled, ailing, or aging veterans. Congress did not intend such a result.
The Court holds that the death of the appellant is not a jurisdictional bar to its consideration of an otherwise proper EAJA application, where the appellant had prevailed on the merits of the benefits claim prior to his death. Thus, pursuant to U.S.Vet.App.R. 43(a)(2), “the personal representative of the deceased party’s estate or any other appropriate person” may be substituted as the “prevailing party” to whom payment of an EAJA award may be made. See 28 U.S.C. § 2412(d)(1)(A). Substitution of the estate or an appropriate survivor is the best method of proceeding in a case such as this, as it has been held that the attorney may not directly claim the fee award. See Phillips v. General Services Admin., 924 F.2d 1577, 1582 (Fed.Cir.1991) (holding that “any fee award is made to the ‘prevailing party,’ not the attorney”). The Court notes, however, that the Federal Circuit’s decision in Phillips does not require any change in YA’s current practice of making EAJA payments, whereby a check is made payable to the prevailing party and the attorney.
II. Motion to Compel Production of Contemporaneously Prepared Time Sheets
As an attachment to his application for attorney fees, the appellant’s counsel filed his sworn declaration of hours expended in preparation of the appellant’s appeal. This
The government objects that contemporaneous time records were not filed with the petition. An itemized computation was filed showing the date, the hours expended, and an identification of the work done in each time increment. The documentation was sworn, in substantial detail, and in standard form; it is sufficient to determine the reasonableness of the charges. See Beta Systems, 866 F,2d at 1406-07; Naporano Iron, [825 F.2d at 404-05.]
Id. at 230 n. 1. The appellant’s counsel is an officer of this Court. His method of time keeping and billing is not on its face unreasonable or questionable. The Court concludes that the application for fees fully complies with the statutory requirement of an itemized accounting. As the Secretary has not pointed to any substantial reason to question the verity or accuracy of the application, the Court will not require counsel to do as the Secretary requests.