*1 491 authority, Secretary’s exer Damrel, from (1996); Vet.App. at distinct 6 57 App. Board, to determine entitle Russell, through cised 246; Vet.App. at 315. 3 law)); Erspamer v. to under ment benefits Note, appears on the Based (1996) Brown, (holding 512 Vet.App. 9 rating failing to award 50% erred RO grant equitable to authority because Moreover, addi- injury. the MG19 discretionary section 503 is relief under (to replace rating for MG19 tion of a 50% appro authority is not Secretary, that with 10%) three other to use as basis ground for Court priate apparently ratings would compensable Board). remand 80%, rating of produced a combined 4.25, § increase from the 38 C.F.R. 70%, rating of thus combined outcome of the
manifestly changing the analysis, Under
RO decision. there was no determination
Board’s (as amended in the 1947 RO decision
CUE decision) appear would by the 1985 RO HENSLEY, Appellant, Burke “arbitrary, capricious, an abuse have been discretion, not in accor- or otherwise v. 7261(a)(3)(A). law,” § 38 dance with U.S.C. Anthony PRINCIPI, J. died, I Had the believe Affairs, Appellee. Veterans held, likely have so there- would February BVA by reversing No. 96-978. the MG19 CUE claim decision as to Appeals Court of United States Board for the matter
remanding Claims. Veterans past-due payment of benefits. I that neither the regard, In this note Nov. provide equitable nor this Court can
Board Brown, Vet.App. 10
relief. See Moffitt (“Court (1997) not a court of 225 equitable re provide and cannot
equity Brown,
lief’) Vet.App. 6 (citing Harvey v. Brown, (1994)); Suttmann cf. (1993) (holding that Vet.App. jurisdiction to review Secre lacks
BVA 503(a) equi § of 38 U.S.C.
tary’s exercise discretion). However, ap
table-relief apply to the are free to
pellant’s survivors equitable- of his
Secretary for the exercise authority under 38 discretionary
relief (2001); § 2.7 503. See 38 C.F.R.
U.S.C. West, 436, 440-41 Vet.App.
Taylor v.
(1998); Vet.App. Zimick v. Vet.App. at 225 (1998); Moffitt,
50-51 Derwinski, 2 alia, inter Darrow
(citing, (1992) (holding that 304-06 503(a) Secretаry to authorizes
section in nature as equitable that is
grant relief *3 Potomac, Myers, B. of North
Edward Stichman, MD, Washing- and Barton F. of ton, DC, pleadings for the were on appellant. Counsel; Bradley,
Leigh A. General Garvin, Counsel; Assistant General Ron Leonard, Deputy A. Assistant Michael Gawalt,- Counsel; Ann all G. General DC, Washington, pleadings were on the appellee. KRAMER, Judge, and Before Chief STEINBERG, Judges. HOLDAWAY and STEINBERG, filed an Judge, opinion concurring part dissenting part. HOLDAWAY, Judge: appellant’s appli- Before the Court is the cation, Equal pursuant Access 2412(d), (EAJA), § Act 28 U.S.C. Justice in the expenses, fees $58,691.54. The amount response opposing grant filed a fees, appellant has filed EAJA and the subsequently Each reply. party submitted in re- supplemental memorandum law May order sponse to Court’s reasons, following For 2002. grant will in the apрlication, amount $47,098.97.
I. BACKGROUND Hensley, previous- appellant, Burke February 1996 decision ly appealed (BVA Appeals of Veterans’ the Board Board) denied, as not well had connection his claim for service grounded, for heart disease as a residual of mustard opinion. sistent with its Hensley v. gas exposure (Fed.Cir.2000). because his condition was not F.3d 1255 July On among the disabilities listed 38 C.F.R. 2000, this Court vacated February presumptively 3.316 as service connect- 1996 Board decision and remanded the gas exposure. ed based on mustard appellant’s claim proceed- to the Board for ings consistent with the Federal Circuit’s appealed the Board’s deci- opinion. Judgment was entered on Au- sion to this asking the Court to 15, 2000, gust and mandate wаs issued on reverse the Board’s determination be- October cause, alleged, he his claim for service connection grounded. was well The Secre- September On the appellant tary filed a brief with the Court seeking *4 a premature submitted application, EAJA affirmance; argued he that appellant the 17, which the Court 2000, filed on October failed to competent submit medical evi- issued, when mandate had signifying that dence of a nexus gas between mustard 15, 2000, August the judgment had become exposure and appellant’s heart disease. final. See Pardue Principi, 15 Vet.App. 22, September 1998, On sin- (2001) order) 122 (per curiam (holding gle judge, decision; affirmed the Board judgment final, becomes operation that, although Court nоted the Board law, days 60 entry judgment; after had in finding erred appellant’s claim issuance of mandate is “ministerial func grounded not well simply because his con- Brown, tion” (quoting Strouth v. 8 Vet. among dition was not those in listed 38 (1996) App. order))). 504 (per curiam 3.316, § C.F.R. that error was harmless because, upon performing a de novo review II. ANALYSIS groundedness issue, of the well A. Jurisdictional and Content appellant’s found that the claim for direct Requirements service connection grounded. was not well jurisdiction “The Court has to award appellant appealed the Court’s deci- reasonable fees and expenses sion to the Appeals U.S. Court of pursuant 2412(d)(2)(F).” § to 28 U.S.C. (Federal Circuit). Federal Circuit On Gober, Cullens v. 14 Vet.App. 237 May the Federal Circuit issued (2001) (en banc). In order for the Court to opinion an holding although this jurisdiction applica over an EAJA correctly held that the Board erred tion, application must be filed within in finding that heart condi- 30-day period in established 28 U.S.C. tion was not grounded solely well because 2412(d)(1)(B). § In appellant order for an his condition was not listed with those eligible award, to be for an EAJA eligible presumptive service connection (1) must contain a show 3.316, § under 38 C.F.R. the Board had ing applicant that the prevailing is a party not reached the factual issue of whether (2) EAJA; within meaning of the an sufficient evidence presented had been to assertion applicant’s net worth well-grounded establish a claim for direct (3) million; does not exceеd connection, allega an $2 service and that this im- tion position permissibly engaged Secretary at finding fact review, holding, upon litigation de administrative level or in novo was (4) justified; not substantially claim for direct service connec- an item tion was grounded. not well ized statement expenses The Federal of the fees and Circuit vacated this Court’s sought, supported by decision and an affidavit from the remanded the matter for proceedings con- applicant’s counsel. See 28 U.S.C.
495 connec 2412(d); grounded 15 claim for direct service Thayer Principi, Vet.App. Cullens, tion, (2001); and, Secretary’s con Vet.App. light 14 207 West, Vet.App. 237; appellant prevailing 499 Chesser cession that the is Brown, (1998); Vet.App. appellant Bazalo v. party, finds that the (en (1996) banc), rev’d on other See v. Princi prevailing party. Briddell (2002). nom. Bazalo v. grounds sub pi, 271-74 (Fed.Cir.1998). In (1) order F.3d are only remaining contention issues (1) fees, to applicant entitled be substantially Secretary whether was party oppos must find that the justified litigation his administrative ing prevailing party; States is a the United and, positions if the Court finds (2) by the allegation there must be an justified in substantially not Secretary was position government’s (2) position, whether the EAJA fees either justified and substantially there reasonable. requested by the are finding contrary; no Court must be B. Substantial Justification (3) finding there must no Court be alleged Once an are circumstances that would there justification, burden lack of substantial against government award mаke an that VA prove shifts to the *5 240; unjust. Cullens, Vet.App. 14 at See justified in its ad substantially both was Brown, Vet.App. 174 Elcyzyn v. 7 litigation positions. ministrative and See (1994). Cullens, 237; Vet.App. at Locher v. 14 concedes, Secretary As the Brown, (1996); Bazalo, Vet.App. 9 537 timely filed, application was lant’s EAJA Brown, 309; Vet.App. 9 at Stillwell 6 and there are no circumstances would (1994). Vet.App. 301 This Court has an award reasonable amount make some held, determining position whether the Further, unjust. notes that the justi Secretary substantially was of the net appellant does assert that his worth fied: did not exceed million at time the $2 the reasonable- VA must demonstrate filed, alleges he Secre- action was ness, fact, position and in law at the administrative tary’s position both ... in matter VA a before substantially litigation levels was not and by act ... and of the action or failure to justified, and he filed an itemized VA, in matter before ... based VA a expenses supported of fees and statement circumstances, upon totality of the by his counsel’s affidavit. merits, conduct, given, reasons including appellant The also asserts he is consistency judicial precedent with and recently party. Court has prevailing The posi- to such policy respect and VA with pre- in order considered a held that to be act, tion, action or failure to purposes obtaining vailing party and the appeal in the record on reflected award, the who obtains a appellant EAJA the Court. filings parties of the before that does direct the award of remand not Further, Id. 302. “reasonableness must show that the remand was benefits totality of circum- by the determined “predicated upon administrative error.” stances, ap- any single-factor not Principi, 264- Sumner Stillwell, went In proach.” Id. (en banc). (2001) the re- Given can position that “‘a be explain on to mis- was based on Board’s mand here correct, though it is not justified even § and the interpretation of 38 3.316 C.F.R. (i.e., substantially it can be we believe failure consider whether Board’s justified if a reasonable part) the most presented had evidence a well- person correct, is, could think it if reasonable, therefore because that treat ” has a reasonable basis lаw and fact.’ actually ment appellant, benefitted (quoting Underwood, Id. Pierce v. 487 U.S. it eliminated the need for him to n. 108 S.Ct. 101 L.Ed.2d demonstrate that presented he had new (1988)). The Court measures substan and material Vaughn, evidence. 14 Vet. justification tial based not on the law exist App. at In present case, ing at the time that the EAJA rejection Board’s claim filed, was but rather on the at the law grounded as not well because his condition adopted VA its position. Bowey See v. was eligible not for presumptive service (Fed.Cir.2000). 218 F.3d connection, and its error not analyzing Secretary argues position that his was whether the presented had evi substantially justified at both the adminis dence of direct service connection can in litigation trаtive and phases appel way no be considered beneficial to the underlying lant’s case. appellant. The Board’s action was con trary to then-existing precedent, see Com
In
response
Brown,
bee v.
(Fed.Cir.1994),
justified in his
position.
administrative
Board,
circumstance in which the
acting
only
contrary to
authority
clear and
unambiguous
cited
the
case
Secre
tary
precedent
in support
and a clear
unambiguous
of his
that a
nonprejudicial
regulation,
position
could
equivalent
be considered to
to a
have
аdopted
reasonable one is
Vaughn, supra.
position.
reasonable
Vaughn
Perhaps if
presents a
quite
precedent
situation
distinct
the case
regulation
from the
or
were not
present one. In Vaughn,
clear and unambiguous
the Court found
that might be a
that the Board’s treatment of a veteran’s
different matter. But that was not the
claim,
claim as an original
rather than a
situation under the facts of this case. The
one,
reopened
nonprejudicial,
was
and Court holds
in
present
...
justified
ongoing litigation
substantially
gral
Secretary
was
attorney
appellate
position.
to award
fees for
power
Because
his administrative
appellant eligible
make
of an
to
is not the exclusive domain
is sufficient
work
award,
Court need not
opinion,
an EAJA
Id. In
appellate
for
court.”
its
the Secre-
question
reach the
of whether
Circuit cited numerous cases de-
Federal
in his liti-
tary
substantially justified
was
appeal in
federal courts of
cided
other
West, 12
position. See Jackson
gation
approved
appellate
court either
which
(1999).
award
fees for
a district court’s
work
remanded
case to
district
late
Appeal
to
Fees
an
C.
permit
court to
court to
the district
deter-
the Federal Circuit
mine
amount
reasonable
appel
Having determined
appellate
fees for
work. Id.
award,
eligible
lant is
an EAJA
Further,
now considers
the issue
Supreme
has
estab-
.that
on
prompted
Commissioner,
it to issue a show-cause order
lished,
Jean,
INS
date,
May
2002. On that
154, 159, 110 S.Ct.
110 L.Ed.2d
U.S.
(1) to
cause
appellant
ordered the
show
(1990),
only
one threshold deter-
why
portion
his EAJA application
justification
is to
mination
substantial
be
seeking
expenses
an award
fees
litigation. Given that
made for the entire
did in
work his counsel
association with
not have exclu-
the Federal Circuit does
appellant’s appeal to the Federal Circuit
jurisdiction
necessary
to
sive
make
juris
for lack
should not be dismissed
determination,
this Court holds
threshold
diction,
(2)
to
ordered
jurisdiction
it does
to award fees
Circuit,
why
show cause
the Federal
for work associated with
under
EAJA
highest court
reviewed
appeal
the Federal
Circuit.
merits,
proper
not the
cаse
D.
the Fee
Reasonableness of
application.
to file
court which
his
asks
reduce
supple-
As the
states
requested
the fees
July
law
mental memorandum of
filed
$35,675.36,asserting
the claimed fees
held,
in PPG
the Federal Circuit
Resp. at 10-15. The
are not reasonable.
Polymer Specialties
Industries
Celanese
*7
discretion in the award of
wide
Co.,
(Fed.Cir.1988),
1565,
F.2d
1569
840
attorney
under the EAJA. See Hens
fees
jurisdiction
it
does not have exclusive
Eckerhart,
424, 437,
461
103
ley v.
U.S.
attorney fees
grant
over a
for work
1933,
(1983);
a proce- number of whether the the brief answer summarized the performed duplicative, work whether history dural case before this an extra attorney takes time due to inex alone, quite which was short at the time. perience, performs or whether Moreover, describing how the 3.5 hours normally performed by tasks paralegals, spent, were counsel makes personnel, clerical non-attorneys. other no having mention of reviewed the under- Brown, Ussery 10 53 record, lying reviewing nor would un- Brown, (1997); see 9 Vet.App. Sandoval derlying necessary record have been (1996). “may properly 180 The Court purposes preparing answer. reduce the number of hours claimed for The Court will the claim reduce of 3.5 spent in duplicative, unorganized, or 1 hours to hour. unproductive otherwise efforts.” Vidal v. Next, Secretary objects Brown, (1996) 8 Vet.App. (citing appellant’s claim a total of 2.75 hours Justice, Jordan v. Dep’t U.S. 691 F.2d days, over two October (D.C.Cir.1982)). However, if un spent by preparing motion for an supported, Secretary’s allegations extension of time. Court notes that expended excessive time are insufficient to justify Sandoval, under Rule 26 of Rules of reduction hours. its Practice and Vet.App. at (Rules), may, 181. Procedure sponte sua inor response party to a good motion The Secretary asserts that the fees re- shown, cause prescribed thе time extend quested are unreasonable a number of any the Rules doing act. The Court instances, specific namely, spent the time grant elected to such extensions in the in 1997 motions preparing preparing case at hand on numerous occasions Court, principal for this brief the time response to appellant, motions spent in preparing reply brief and the appellant, in his for an preparing the motion for reconsideration award, has claimed time for for this the time spent preparation preparing principal brief and of these motions. reply Although brief for the Circuit. Resp. motions, Federal the Court’s permit 10- Rules such permitting an ask for an ex tension of a and finding deadline
1. 1997
рublic fisc should subsidize such efforts are
First,
contests the
two entirely
prepa
different matters. The
appellant’s claim of 3.5 hours for attorney
ration of such
would be
motions
unneces
time that
attributes to the
sary if
timely perform
would
drafting,
April
very
of two
required
the act
of him or her.
papers
Court;
brief
to be filed with this
occasion,
recognizes
that on
cir
*8
that,,
the Secretary argues
because one of
beyond
appellant’s
cumstances
the
control
(an answer)
papers
these
was neither com
difficult,
timely performance
make
if not
plex
novel,
nor
consisting only of a short
case,
impossible.
In this
the
in its
case,
procedural history of the
the claimed
determination of what constitutes a rea
hours should
to 1
be reduced
hour. The
purposes
application
sonable fee for
of an
appellant responds that the time claimed is
EAJA,
under the
will exercise its discre
considering
reasonable
the substantial
tion to
length of
reduce or eliminate as
agrees
the record. The
unreasonable
Court
certain
Secretary
pre
with the
the claim
fees for work associated
of 3.5
with
hours is
Notwithstanding
paring
excessive.
motions for
of
extensions
time. See
length
Eckerhart,
history
generally
of the
499 in the from the been excised (holding wide 1933 S.Ct. billing attorney fees under exercise of discretion. in of discretion award EAJA). instance, appellant’s In this appel agrees The Court with the of time sought an extension be- counsel opening lant in his brief he did ad in press proceedings of of court cause “the relat argument, vance one correct one District Court the United States interpretation ing to erroneous the Board’s Columbia”; necessity of of District Further, of 38 3.316. and more C.F.R. an of drafting a extension time motion this Court and other courts importantly, the appel- eliminated had would been may an appellant have held that recover efficiently managed his lant’s counsel more unsuccessful, fees under the EAJA for but timely opening filed the workload and brief reasonable, litigant if ulti arguments, The finds un- before Court. mately on the claim. See was successful appellant’s counsel ex- reasonable 503-04; Chessеr, Vet.App. 11 Schneider his public funds subsidize de- pects P.R., Abogados F.3d Colegio de de 187 claimed 2.75 linquency and will strike the Cir.1999) (1st curiam (per opin 48-49 hours. ion) C.J., concurring); (Lipez, Jaffee Similarly, objects to Secretary (7th Redmond, Cir.1998); 142 F.3d 414 appellant’s claim on November Educ., Bd. People Care v. Who Rockford of 2.75 spent his counsel hours Cir.1996). (7th It is F.3d prepare a motion for an extension call, finds that close but Again, sought an time. brief, appellant’s arguments opening in his press pro- to the of court extension “due although degree in irrelevant and for some ceedings proceedings.” in court For other successful, ultimately the most above, the Court will the reasons listed good in were made faith constituted 2.75 strike the claimed hours. in reasonably advancing expended effort Secretary objects also to the length of the record case. Given any time for his claiming lant’s whatsoever presented, arguments and the attorney’s initial preparation brief appellant’s claim 41.75 find the does not 1997; filed before this Court December spent preparing hours asserts that the to be excessive unreason opening brief rejected by the Court and arguments were able. unnecessary therefore were resolu- Therefore, to- the Court will reduce the Perry He tion of case. cites tal of time claimed amount (1998), support from Myers, Esq., Edward work done proposition that an EAJA award is hours. 78 hours to 70 justified only for actions that are “neces- 2. 1998 achieving sary important factor appel Secretary contests the desired,” impliedly drawing the con- relief attorney time of 4.75 hours of lant’s claim spent arguments on clusion that time drafting April spent unnecessary ultimately are unsuccessful Secretary’s mo filing opposition to the recompensed not be and therefore should time; the Secre tion for an extension responds The appellant under the EAJA. tary opposition consisted argues initial brief preparation *9 simple of a pages one and one half case, of the necessary to the resolution of to .75 argument. He seeks a reduction ultimately one was success- that draft appellant responds that that, event, hours. The ful, аny relating hours “a unsuccessful, ing required motion substantial other, argument have the his However, original amount of research” a close call. for rea- because the the same appellant’s had not previously previously relating sons appel- listed to the such a The brief, drafted motion. Court notes appellant lant’s the opening should opposition, his the appellant did recompensed be for these ar- unsuccessful any not cite or case that statute would guments they were rea- expended because a provide legal denying basis for the Sec- sonably. the Court will strike retary’s motion for an extension of time. 1998, the 1.75 hours claimed on June agrees The Court the Secretary with that for appellant’s counsel to mo- draft a claim simple a of 4.75 for a hours motion time, reply tion to file brief out unsupported by legal authority is excessive unreasonable, that given such a motion will reduce the 4.75 hours to .75 hours. solely by was necessitated appellant’s delinquency. counsel’s
The Secretary
appel-
also contests the
lant’s claim of 2
of attorney
hours
time on
The
also contests the 31
May 27,1998, spent
a
preparing motion for hours of attorney
by
ap
time claimed
Again,
an extension of
time.
pellant
preparing
for
his motion for recon
sought
lant’s counsel
extension “be-
panel
sideration or
a
decision in this
press
cause of the
of business before this
Court, and
that this
asks
amоunt be elimi
agencies
Court and before other
award,
nated from
out
pointing
government.” For
federal
the same rea-
the motion was denied
the Court
previously
striking
sons listed
the time
as moot.
appellant argues
appellant’s
claimed for
pre-
counsel to
denial of the
“temporary
motion was but a
pare motions for an extension of time
arguments
setback” and that
in the
management,
on
based workload
accepted by
motion were later
the Federal
will strike the
2 hours.
claimed
Circuit.
objects
The Secretary
appel
Court notes
its memorandum
lant’s claim of 82.25 hours for work done
decision
affirming
Board’s decision was
preparing
reply
brief for this Court.
September
issued on
1998. Under the
Agаin, the Secretary asserts that one ar
Rules,
appellant’s
Court’s
time to file
gument was not successful and that
motion for
panel
reconsideration or for a
total time
be
therefore should
reduced to
expired
decision
on October
appellant responds
15.25 hours. The
judgment
was entered
that date. On
associated with the unsuccessful
appellant
October
requested
claim
been omitted. The Court’s re
an extension of time to file such a motion.
appellant’s reply
view the
brief reveals
On October
noted
just
that not
all arguments
one but
con
the time
filing
the motion for reconsid-
rejected by
tained therein were
the Court.
eration or for panel
expired,
decision had
brief,
reply
In his
principally
and the
motion for an extension
analyzed evidence that he
proved
claimed
of time was
as moot. Having
denied
failed
nexus
between his condition and mustard
by long standing
meet
deadline set
the.
(and
exposure
gas
argue
did
Rules,
only
recourse
Court could not review this evidence in the
was to file an appeal with the Federal
instance),
first
proffered
various other
Nevertheless,
Circuit.
on November
arguments later
to be without
found
merit.
brief,
reply
inexplicably
In his
filed with
did not
the Court a
address the Board
motion
leave to file out
interpreting
error
8.316,
time a
motion
va-
basically
C.F.R.
because
reconsideration
and for
Secretary. Again,
conceded
catur of
judgment.
this is
Court’s
On
*10
date,
compensated
spent
for
time
appel-
received
be
same
preparing
arguments
all
before the Feder-
17-page motion for reconsideration
lant’s
The Court
panel
for a
decision.
denied
al Circuit.
for
to file out of time and
the motion
leave
above,
may
an appellant
As noted
25,1998,
because
for vacatur
November
recover
for unsuc
fees under
previously
had
denied
arguments if
cessful but reasonable
extension of time.
lant’s motion
an
litigant
ultimately
on the
was
successful
of the motion for
appellant’s filing
may
claim.
award fees for time
Courts
file out
time and
vacatur
leave to
reasonably spent
argu
on an unsuccessful
reconsideration mo-
and submission of the
claim;
support
ment
successful
unnecessary,
tion was unreasonable
however,
determining
touchstone in
already
filing
that he
missed
given
had
to be
in such
ought
whether fees
awarded
Moreover, although it is not a
deadline.
argument
is
rea
a case whether the
was
factor,
also
decisive
is con-
Care,
People Who
90 F.3d
sonable.
to note
in this untimely
strained
that
mo-
appellant
1314. The
contends that
tion,
not raise
issue
did
argument
Epps
reason
to overturn
i.e.,
ultimately prevailed,
he
upon which
ably
panel
a rule of
made to the
because
authority
find
of this
to
facts
to ask a
permits
court
Accordingly, the
the first instance.
panel
precedent
peti
to overrule
without
the 31
associated with the
will strike
hours
tioning
hearing
for a
banc. See
en
Fed.
preparation
the reconsideration motion.
35(a)(2). However,
opinion
Cir. R.
in its
above,
As outlined
the Court will reduce
this
Federal Circuit
stated:
the amount
time claimed
1998 for
Mr.
much
his
to
Hensley devotes
brief
by
Myers, Esq.,
work done
Edward
from
urging
Epps
overturn
court’s
us to
this
to
84.35 hours
45.6 hours.
Hensley
decision....
Mr.
3. 1999
aware,
fully
panel
au-
is
this
lacks the
Finally,
Secretary
contests award
prior
thority
overturn a
decision of
to
by
spent
ap
fees
ing EAJA
[,
Corp.
another
South
su-
panel. See
pellant’s
preparing
briefs
pra]. Any
Epps
reversal
arguments
contained various unsuccessful
court
have to be done
the court
will
First,
before the Federal Circuit.
en banc.
objects
awarding EAJA fees
Hensley West, 212
F.3d
1260-61
time sрent
counsel’s
(Fed.Cir.2000).
made
The Federal Circuit
preparing part
opening
I of the
brief and
argu-
the appellant’s
no further mention of
brief,
II of the
those
reply
because
Epps
ment
should be overturned.
parts
appellant’s argument
contained the
Thus,
the Federal
rules
although
Circuit’s
(Fed.
Gober,
Epps v.
Given the Federal treat is 32.5 Circuit’s and hours. The will Court issue, Epps of the ment finds half, by approximately reduce that amount case, that, in this it was unreasonable for hours, to 16 probably generous. which is appellant’s expended counsel tо have time that The total included related tasks Epps such considerable efforts on the ar brief, argument Epps reply to the for the gument panel before a Federal of the Cir 29, 7, 12, 13, July 10, 11, as June listed for question cuit. The is not it whether was 20, August and and 32.25 the rules argu within to advance a futile Again, hours. the Court will reduce ment; it is whether it was reasonable for half, by approximately amount to 16 hours. appellant’s counsel to devoted the have The total time included tasks related majority argument portion of the of his argument Epps argu- to the for the oral panel to a authority brief lacked ment, as listed October 29 and Decem- in gener his favor on rule that issue. See 2, 3, 5, 7,1999, ber and is 18 hours. Eckerhart, ally U.S. at S.Ct. half, reduce that by will аmount to 9 pointed 1933. Federal itself Circuit Overall, then, hours. the Court will re- “fully out aware” duce the total hours F. claimed Barton panel authority lacked to rule on Stichman, in Esq., 1999 from 97.5 hours to (although opening such matter in his 55.75 The Secretary hours. also contests Circuit, to the brief Federal pre- the inclusion of spent time panel” asks “this Epps). to overrule paring various other argu- unsuccessful Hensley, 212 In F.3d 1260-61. Circuit, ments to the Federal but present counsel could Court finds the remainder of the provided a synopsis succinct of the arguments lant’s to be not unreasonable Epps argument in panel, his brief to the thereby under all the circumstances. preserving the issue for a later en argument, then, granted banc and if en Incidentally, the Court notes that review, appropriately banc could have sub appellant’s counsel has made an in error fully mitted en banc court a devel application. page fee On total analysis oped of his to overrule expenses $799.11; is listed as the total Epps. actually listed items is $499.11. Now comes the difficult of deter- issue appears calculating that in mining how much time was devoted to the ($58,691.54, total of the fee argument, Epps spent pre- including time $58,192.43 comprised of legal plus fees brief, brief, paring opening reply expenses), actually preparing for oral It argument. ap- $499.11, figure did use correct not- pears from the only itemization of fees withstanding expenses total misstated Stichman, аttorney, Esq., one Barton F. II.D.1-2, page explained As Part Epps argument, drafted which com- reduce Court will the hours claimed for prised part I of opening brief Myers, the work Edward Esq., in 1997 II the reply Unfortunately, brief. in his from 78 to 70 hours and for his work records, billing Mr. often Stichman lists 1998 from 84.35 to 45.6 As ex- hours. block, various activities single under a II.D.3, plained Part re- Court will impossible it is exactly to ascertain duce the hours claimed for the work much how time was to each devoted dis- Stichman, Esq., Barton F. from task listed. crete The total time that in- 97.5 hours 55.75 hours. to- The other Epps argument cluded tasks related to the brief, same, tals opening remain and the will listed Febru- 19, 26, 29, 30, March ary April calculate the fee at the proposed rates *12 35(a)(2). true, Although it is will Cir. R. and reimburse counsel Fed. states, 501-02, that majority ante at expenses claimed. as appellant for all pointed out that
the Federal Circuit
case,
Epps
overrule
in this
panel could not
III. CONCLUSION
35(a)(2) specifically per
that court’s Rule
pleadings
After consideration of
panel
to a
a method
argument
mits such
as
record,
grants in
a review
court. Fed.
R.
reaching
the en banc
CiR.
application, in
appellant’s EAJA
part the
35(a)(2). Therefore, I do
not believe
$47,098.97.
the amount
attorney reasonably could
briefing
that such
to a
anticipated
STEINBERG,
concurring in
Judge,
part
banc
panel
potential
of a
en
issue would be
dissenting
part:
in
considered as unreasonable
this Court.
future,
seem, attorneys
In
it would
join
opinion
I
in thе
with the
Court’s
effort,
may
temper the amount of
wish to
part
and the amount of
exception
II.D.3.
accept
to
less than
prepared
least be
I
III.
cannot
the total reduction
effort,
full
EAJA fees for such
devoted
reached
agree to the conclusion
arguments to Federal Cir
presenting such
its
in the exercise of
discretion
panels. But
are
what
dealing
cuit
we
with
case, to
on the facts of this
exclude
based
and,
in the instant
was reasonable
guesstimates
hours that
all
object
although
reduc
I would not
to some
appellant’s argu
were attributable to
Epps
especially
be
tion
matter —
opinion
that the
ment
Federal Circuit’s
arguments presented
cause some of the
(Fed.Cir.
Gober,
Epps v.
126 F.3d
may
presented in other cases
have been
1997),
Nor
I
should be overruled.
do find
appealed to the Federal Circuit —I believe
reasonable the
calculations that
Court’s
all
decision to eliminate
Court’s
Epps
41.75 hours were attributable
total re
such hours is unwarranted. This
issue.
particularly unreasonable
duction seems
point,
the first
the rules
the U.S.
On
the Federal
is
because soon after
Circuit
Appeals
for the Federal Circuit
Hensley
opinion
its
sued
Rule'35(a)(2):
(Federal Circuit)
provide
(2000),
court, sitting en
F.3d 1255
Gober,
banc,
order in Brock v.
issued an
Arguing to a Panel to Overrule a Pre-
argument
question
it
for oral
which set
cedent
appears
overruling Epps;
therefore
may
Although only the court en banc
from “fu
was far
Epps
binding precedent,
party
overrule
tile”,
suggests,
at 502.
majority
ante
argu-
may argue, in its brief
oral
(Fed.Cir.
Gober,
222 F.3d
Brock v.
ment,
binding precedent
to overrule
2000) (en banc).1
hearing
petitioning for
en banc.
without
41.75,
hours,
the number of
Regarding
panel will decide whether
ask
Epps ar-
disallows
regular
judges to consider hear-
active
rejects approximately
guments, the Court
ing the case en banc.
Brown,
(1997),
ion in
Claims
Brock
With the enactment of the Veterans
106-475,
No.
Act
Pub.L.
to con-
[this Court]
Assistance
"to allow
and remanded
(VCAA),on November
Stat.2096
of the VCAA”.Brock
application
sider the
argument in
were
set
Brock
the issues
for oral
95-444,
*1at
Principi,
50% of the and 18 hours that spent working principal on the
reply preparing briefs and argu- for oral
ment, respectively. However, the EAJA reveals excep- with two (March 29, 1999),
tions 19 and June multiple
hours claimed involved tasks or
actually made no direct or indirect refer-
ence to Epps matter. I Although find reduction,
no basis for the 50% counsel for arbitrary invited such action
by failing provide adequate specificity in
the fee itemization applica- included
tion. foregoing reasons,
For I dissent and, Epps hence,
from the reduction from
the calculation of the total amount re-
duced. BONNY, Appellant,
Matilda
Anthony PRINCIPI, Secretary J. Affairs, Appellee.
Veterans
No. 00-39.
United States Appeals Court of
for Veterans Claims.
Argued Sept. 2002.
Decided Dec. notes question panel authority no lacks judges at the Federal Circuit cannot over Corp., request. rule on that See South court; panel prior turn a decision of that Nevertheless, the devot- supra. court a case en only deciding banc fully pages argument the 48 of the ed 27 of may Corp. do so. See South United (a more opening brief little (Fed.Cir.1982). section States, F.2d He half) pages the 33 than and 15 of spent asks the Court to exclude hours (a little reply of his brief portion section preparing of the briefs. The half) Epps argument. than that he is entitled to less appellant contends