arguing that Jacob-sen, by looking beyond actual remand order to speculate on potential outcome of case absent intervening change, violated prior Court precedent
How later courts described this case
- arguing that Jacob-sen, by looking beyond actual remand order to speculate on potential outcome of case absent intervening change, violated prior Court precedent
- en banc per curiam order
Written by the judges who cited it.
The opinion
NEBEKER, Chief Judge,
concurring:
I believe that the Court’s action in this case is fully consistent with our EAJA jurisprudence and with Supreme Court precedent. My dissenting colleague makes much of what he would have us believe is binding precedent rendering “verboten ” (emphasis is his a “retrying of the merits of the case by the Court.”) He would create a holding from what the Supreme Court itself has characterized as a “view.” Pierce v. Underwood, 487 U.S. 552, 563 , 108 S.Ct. 2541 , 101 L.Ed.2d 490 (1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983)). Reading the statement in context in Pierce makes clear that the avoidance of a “second major litigation” is desirable when the level of hourly fees is the question, but it is merely one factor to be considered, and is overridden by the duty of the adjudicative body that determines the fee to do what is “reasonable.” Id. at 581-82 , 108 S.Ct. 2541 . Hensley , cited in Pierce , states that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley, supra. However, this elaboration immediately follows:
Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise “billing judgment” with respect to hours worked ... and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.
Id. The overriding emphasis in both Hensley and Pierce is on the exercise of discretion by the court that disposes of the application. Read in context, in both these cases, the sense of the statement concerning “a second major litigation” is that, in the best of all possible worlds, it would never be necessary. However, both cases proceed to resolve just such a litigation by holding that appellate review is very limited indeed over a court’s exercise of discretion in deciding entitlement to and amount of such a fee.
As to EAJA applications filed in this Court, our duties are like those of the district court in Pierce and Hensley . 28 U.S.C. § 2412 (d)(2)(F). In considering EAJA applications, this Court has consistently applied one guiding principle: that the determination whether to award or deny fees must be made based on “the totality of the circumstances.” See, e.g., Jackson v. West, 12 Vet.App. 422, 426-28 (1999) (“relevant, determinative circumstances” must be considered); Stephens v. West, 12 Vet.App. 115, 119 (1999); Rhodan v. West, 12 Vet.App. 55, 57 (1998); Dillon v. Brown, 8 Vet.App. 165, 167 (1995). One size does not fit all. I believe that the Court’s action in Jacobsen complies with this guiding principle and is reasonable based on the totality of the relevant, determinative circumstances. My dissenting colleague would cabin those circumstances far too narrowly. His hyperbole bespeaks the weakness of the judgment he would make.