fees excluda-ble from EAJA award are those (1) for time spent on distinct and severable claims, and (2) for, expenses that would have been necessary even if the United States had not taken an unjustified position on the merits
How later courts described this case
- fees excluda-ble from EAJA award are those (1) for time spent on distinct and severable claims, and (2) for, expenses that would have been necessary even if the United States had not taken an unjustified position on the merits
- discussing exception to general rule of one substantial-justification determination when, inter alia, the “action involves distinct and sev-erable claims”
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
Attorney Kabatchnick, upon whose work a significant part of the EAJA application is based, has withdrawn as a representative of the appellant. The successor attorney who signed the EAJA application is attorney Beaver, a partner at the firm that employed both attorney Kabatchnick and attorney Parker as associates. Attorney Parker, whose work is also a subject of the EAJA application, performed part of his work at a time before attorney Beaver was representing the appellant. Although, in Similes v. West, the Court *71 specifically reserved the question of whether a successor attorney could retain an EAJA award based upon the work done by a predecessor attorney, see Similes, 11 Vet.App. 115, 120 (1998), the Court has held that fees can be awarded for the work of those supervised by an attorney, see Sandoval v. Brown, 9 Vet.App. 177, 181 (1996). Because of the implicit supervisory relationship between attorney Beaver, a partner, and associates within the law firm, the award of EAJA fees to a successor attorney is appropriate in this case.
Nevertheless, a successor attorney should not be eligible to receive EAJA fees for the work of a predecessor attorney unless an appropriate relationship exists, as here, that makes retention appropriate. In the absence of such a relationship, the successor attorney would be unjustly enriched to the detriment of the taxpayer. Thus, I cannot support the majority’s position that appears to make the preclusion of such a result dependent upon either the complaint of the Secretary or a dispute between the predecessor and successor attorneys. In my view, the Court has an independent obligation to prevent a raid upon the public fisc. Cf. Shaw v. Gober, 10 Vet.App. 498, 503-505 (1997) (attorney cannot collect both EAJA public money and private client money for the same work).
The cases relied upon by the majority to demonstrate that the so called “fee-to-sueces-sor issue is not before the Court” are unpersuasive. In Perry v. West, the successor attorneys, both from the same firm, limited them EAJA application to work performed by only themselves and did not include the work of a predecessor attorney in their application. Perry, 11 Vet.App. 319 (1998). One of the successor attorneys later withdrew, but only after the filing of the initial EAJA application. The Court, in an opinion authored by the author judge here, simply failed to recognize any Similes issue that was raised by the withdrawal of one of the successor attorneys. In Chesser, neither attorney withdrew before the resolution of the EAJA application, and therefore no Similes issue was presented.