Daniel E. Abbey v. Anthony J. Principi

This version includes the errata dtd 30Sep03 -e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-501(E)

DANIEL E. ABBEY , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Application for Attorney Fees and Expenses

(Decided September 24, 2003 )

Barton F. Stichman and James W. Stewart (nonattorney practitioner), both of Washington,

D.C., were on the pleadings for the appellant.

Tim S. McClain, General Counsel; Joan E. Moriarty, Acting Assistant General Counsel;

Darryl A. Joe, Acting Deputy Assistant General Counsel; and Barbara J. Finsness, all of

Washington, D.C., were on the pleadings for the appellee.

Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge, filed the opinion of the Court and separate views.

STEINBERG, Judge: Before the Court is the appellant's January 17, 2002, application, filed

through counsel, for attorney fees and expenses pursuant to the Equal Access to Justice Act,

28 U.S.C. § 2412(d) (EAJA). The Secretary filed a response, and the appellant filed a reply thereto.

The Court twice ordered supplemental briefing, to which both parties responded. For the reasons

set forth below, the Court will grant the appellant's application.

I. Background

The appellant, through attorney Barton F. Stichman and nonattorney-practitioner James W.

Stewart, previously sought review of a November 21, 2000, Board of Veterans' Appeals (Board or

BVA) decision that denied a Department of Veterans Affairs (VA) disability rating greater than 20%

for service-connected residuals of a fracture of the left humerus. In October 2001, the Court granted

the appellant's motion for remand, denied the Secretary's motion for remand, and vacated the Board

decision because the Board had failed (1) to address in its decision the Veterans Claims Assistance

Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, and (2) to analyze 38 C.F.R. § 4.59 (2000) in light

of the specific medical evidence of record. Abbey v. Principi, No. 01-501, 2001 WL 1181652

(Vet. App. Oct. 1, 2001) (single-judge order) [hereinafter Abbey I].

In January 2002, the appellant filed an EAJA application seeking $2,647.15 in attorney fees

and expenses. Application (Appl.) at 1. The appellant calculates the requested amount based on

(1) 20 hours, at a rate of $120 per hour, spent by the senior litigation paralegal, Mr. Stewart, who is

employed by the National Veterans Legal Services Program (NVLSP) and is admitted to practice

before this Court as a nonattorney practitioner; (2) 1.5 hours spent by Mr. Stichman, a member of

the Court's bar, at a rate of $140.95 per hour; and (3) expenses in the amount of $35.72. Appl. at

5-6. According to records of the Court, Mr. Stewart has been certified to practice under the

supervision of Mr. Stichman in accordance with Rule 46(b)(1) of the Court's Rules of Practice and

Procedure (Rules). In February 2002, the Secretary filed a response and the appellant filed a reply

thereto. The Secretary concedes that the appellant has met the "predicate findings for an EAJA

award" (Response (Resp.) at 1-2 (citing Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1994))) and contests

only what the appellant asserts is the appropriate hourly rate for the work of nonattorney-practitioner

Stewart (Resp. at 4). The Secretary asserts that Mr. Stewart should be awarded, instead of the $120

per hour fee requested, a $90 per hour fee based on the Laffey Matrix, a chart based on the Consumer

Price Index (CPI) and adopted by courts in the D.C. Circuit for calculating fees for both attorneys

and paralegals; the Secretary asserts that the higher rate represents "an unreasonable and unsupported

rate of compensation for nonattorney practitioner work before this Court". Resp. at 4, 13-14; see

Covington v. District of Columbia, 57 F.3d 1101, 1105 (D.C. Cir. 1995) (describing the Laffey

Matrix as "a schedule of charges based on years of experience developed in Laffey v. Northwest

Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983)", aff'd in part and rev'd on other grounds, 746 F.2d 4

(D.C. Cir. 1984), overruled in part on other grounds by Save Our Cumberland Mountains v. Hodel,

857 F.2d 1516, 1524 (D.C. Cir. 1988) (en banc)). Principally, the Secretary argues that Mr. Stewart's

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"experience does not warrant payment of a higher rate [than $90 per hour] for a nonattorney

practitioner." Resp. at 9-12. The Secretary urges the Court to adopt the $90 per hour fee suggested

by the Laffey Matrix and thus reduce the total EAJA award to $2,047.15. Resp. at 13-15.

In reply, the appellant, inter alia, suggests that the Laffey Matrix and an alternative matrix

from the United States Attorney's Office in D.C. are both (1) outdated because they are based on the

prevailing market rates for legal assistants in D.C. in the 1980s and (2) "'somewhat crude'" because

they do not adequately account for "an individual's skill, experience, and reputation". Reply at 7-9

(quoting Covington, 57 F.3d at 1109). The appellant argues that in the instant case the Secretary's

proposed fee of $90 per hour for Mr. Stewart does not account for his skill, experience, and

reputation in veterans law (Reply at 9-10), and that the reasonableness of the fee is demonstrated by

eight previous cases in this Court where the Secretary has "willingly agreed" to pay fees at the

$120-per-hour rate for Mr. Stewart's work as a nonattorney practitioner (Reply at 5-6, 13).

In April 2002, the Court stayed proceedings in this case pending the outcome of Wilson v.

Principi, which also contained as the sole disputed issue the appropriate hourly rate for Mr. Stewart.

Abbey v. Principi, No. 01-501, 2002 WL 745958 (Vet. App. Apr. 25, 2002) (per curiam order). On

December 12, 2002, the Court issued an opinion in Wilson and determined, based on the evidence

presented there and the Laffey Matrix, and also by analogizing Mr. Stewart's work to that of a senior

paralegal in D.C., that $90 per hour was the prevailing market rate for a fee for Mr. Stewart's work

in that case and "awarded $1,215 for non[]attorney practitioner fees for 13.5 hours at $90 per hour."

Wilson, 16 Vet.App. 509, 511, 515 (2002) [hereinafter Wilson I]. Thereafter, the Court issued a

briefing order in this case lifting the stay and ordering the parties to file memoranda addressing "why

the prevailing market rate in this case should not be $90 per hour." Abbey v. Principi, 16 Vet.App.

543, 544 (2002) (per curiam order).

In his January 2003 response to the Court's briefing order, the appellant argues that the

evidence presented in the instant case supports a fee award of $120 per hour for Mr. Stewart's work

here. Memorandum (Mem). at 2. In support of that assertion, he presents evidence including

(1) evidence attesting that Mr. Stewart is paid by the NVLSP at a higher rate than some attorneys

working for that organization (Mem. at 8-9, Exhibit (Exh.) G-H); (2) evidence that Mr. Stewart has

represented appellants before this Court in more than 200 cases (Mem. at 12-13); and (3) evidence

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that the prevailing market rate for certain nonattorneys in D.C. varies depending on their work

experience and that the $120 per hour sought here is within that prevailing-market-rate range

(Mem. at 10-11, Exh. B-F).

On February 21, 2003, the Court denied reconsideration of Wilson I. Wilson v. Principi,

17 Vet.App. 19, 20 (2003) (per curiam order). In the Secretary's March 2003 memorandum response

to the appellant's January 2003 memorandum, the Secretary argues that Wilson I, supra, and its

reliance on the Laffey Matrix is controlling and that the additional evidence submitted by the

appellant in the instant case was also submitted with the appellant's unsuccessful motion for

reconsideration in Wilson I; thus, the Secretary contends that the Court "should reject the same

arguments here." Mem. Resp. at 2-4. The appellant filed a reply that same month and argues that

the Secretary presented no additional evidence in his memorandum to support his contentions and

"does not address the issue whether the new evidence submitted by [the] appellant provides prima

facie evidence of the prevailing market rate for non[]attorney[-practitioner] Stewart" or whether the

prevailing market rate in the instant case should be "at least" $120 per hour. Mem. Reply at 2. The

appellant maintains that the instant case is not controlled by Wilson I, supra, because the Court's

determination of the prevailing market rate for an individual advocate "is a finding of fact based on

the evidence submitted by the parties in an adversarial proceeding." Mem. Reply at 3. He further

argues that his due process rights would be violated if he was estopped in the instant case from

submitting evidence and participating in litigation on an issue of fact, the prevailing market rate for

Mr. Stewart, that had been decided in Wilson I, supra. Mem. Reply at 3. In May 2003, the Court

ordered additional briefing regarding the effect, if any, of section 403 of the Veterans Benefits Act

of 2002, Pub. L. No. 107-330, §403, 116 Stat. 2819, 2833 (2002) (VBA), which was enacted on

December 6, 2002, and includes authority for the Court under the EAJA "'to award fees and

expenses, in an amount determined appropriate by the United States Court of Appeals for Veterans

Claims, of individuals admitted to practice before the Court as non[]attorney practitioners.'" Abbey

v. Principi, 17 Vet.App. 75, 76 (2003) (per curiam order) (quoting VBA § 403). Specifically, the

Court requested "supplemental action from the parties" regarding the following issues:

(1) Submission of supplemental briefing on the significance

of VBA § 403 in terms of the Court's authority to award EAJA fees

for the work of (a) Mr. Stewart in this case and (b) non[]attorney

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practitioners in general, including whether the Court is authorized to

establish its own fee schedule for the work of such practitioners; and

(2) Submission of supplemental briefing and supporting

evidence regarding (a) the extent to which Mr. Stewart's employer is

comparable to the large private law firms from which affidavits

regarding the prevailing market rate have been submitted by the

appellant in this case in support of his requested hourly EAJA rate for

Mr. Stewart's work and (b) the extent to which Mr. Stewart's

employer is comparable to any other firm or entity providing legal

representation and the prevailing market rate at which the work of

non[]attorney representatives and/or paralegals is billed for at such a

firm or entity.

Abbey, supra.

On June 16, 2003, the appellant responded; he argues that there is no significance to the new

statutory language included in VBA § 403 as applied to Mr. Stewart because "[t]he Court had

authority to award EAJA fees for the work of Mr. Stewart both before and after the VBA," but noted

that that section did "provide the Court with authority to award fees under the EAJA for the work

of individuals whose work could not be compensated under the EAJA prior to the change in law –

'individuals admitted to practice before the Court as non[]attorney practitioners' who were not

supervised by attorneys." Mem. Resp. at 4-5 (quoting VBA § 403). The appellant contends (1) that

in light of VBA § 403, its legislative history, and the longstanding practice of courts to determine

the prevailing market rate on a case-by-case basis, this Court does not have authority to create its

own fee schedule (Mem. Resp. at 5-10), and (2) that "for purposes of calculating fees under a

fee-shifting statute like the EAJA[,] which authorizes 'reasonable attorney's fees,' Mr. Stewart's

employer is . . . 'comparable' to both 'large private law firms' and 'other law firms and entities

providing legal representation'" (Mem. Resp. at 13-15 (quoting Abbey, 17 Vet.App. at 76, and citing

Blum v. Stenson, 465 U.S. 886, 898 (1984), and Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 933

(Fed. Cir. 2001))). Attached to the appellant's response memorandum is, inter alia, an affidavit from

the sole partner of a small D.C. law firm who stated that his firm regularly billed "over $150 per

hour" for the work of "[s]killed and specialized paralegals".

On July 21, 2003, the Secretary responded; he reiterates his argument that the parties here

are identical to those in Wilson I and that the Court should follow that precedential opinion by

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awarding Mr. Stewart EAJA fees at a rate of $90 per hour. Supplemental (Suppl.) Mem. at 6-7, 11.

The Secretary (1) agrees with the appellant that "VBA § 403 now provides for the award of EAJA

fees for non[]attorney practitioners whose work is not supervised by an attorney, whereas before the

enactment of the VBA, the Court had no authority to award such fees" and (2) notes that the "VBA

has no significance in this particular case" because under pre-VBA law Mr. Stewart was eligible to

receive EAJA fees for his services as a supervised nonattorney practitioner. Suppl. Mem. at 3. The

Secretary did not submit additional evidence as to whether large law firms are comparable to the

NVLSP, and he asserts that that issue is not pertinent. Suppl. Mem. at 8. He notes that he "has never

contested the fact that Mr. Stewart is well qualified." Suppl. Mem. at 8-9. Neither the Secretary here

nor the appellant in his June 2003 response addressed in terms of the fee award in this case this

Court's new authority under VBA § 403 to award as part of EAJA applications "fees and expenses,

in an amount determined appropriate", for the work of nonattorney practitioners. Abbey, supra.

On August 4, 2003, the appellant submitted additional evidence, purportedly pursuant to Rule

30(b). See U.S. VET . APP . R. 30(b) (providing for party to advise Court of "pertinent and significant

authority [that] comes to the attention of a party after the party's brief has been filed"). On

August 18, 2003, the Secretary responded; he "urges the Court not to accept" the appellant's letter

or the additional evidence enclosed with it. Because this submission was contemplated within the

"supporting evidence" described in the Court's May 2003 supplemental briefing order (to be filed

not later than 30 days after the date of that order) as contrasted with "pertinent and significant

authority" as contemplated by Rule 30(b) and because the 30-day deadline under the May 2003 order

has expired, the Court will not consider this additional evidence in the disposition of this matter.

II. Analysis

This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to

28 U.S.C. § 2412(d)(2)(F). The appellant's January 17, 2002, EAJA application was filed within the

30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies all EAJA

jurisdictional content requirements because the application contains the following: (1) A showing

that, by virtue of the Court's remand, the appellant is a prevailing party within the meaning of the

EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth

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does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially

justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B);

Scarborough v. Principi, 319 F.3d 1346, 1349-55 (Fed. Cir. 2003); Bazalo v. West, 150 F.3d 1380,

1383-84 (Fed. Cir. 1998); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc).

In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See

28 U.S.C. § 2412(d)(1)(A) ("court shall award to a prevailing party . . . fees and other expenses");

Briddell v. Principi, 16 Vet.App. 267, 271 (2002); Sumner v. Principi, 15 Vet.App. 256, 260-61

(2001) (en banc), aff'd sub nom. Vaughn v. Principi, __ F.3d __, 2003 WL 21707273 (Fed. Cir. July

24, 2003); Cullens, supra. The appellant has the burden of demonstrating prevailing-party status

under the EAJA. Ibid. Prevailing-party status arises in either of two ways. The first is through a

direction of the Court, evident within the terms of the particular Court decision upon which the

appellant is basing the EAJA application, for VA to award VA benefits to the appellant. Sumner,

15 Vet.App. at 264-65. The second is through the grant of a merits-stage Court remand that was

predicated upon administrative error. Ibid. In order for a remand to have been predicated upon

administrative error, the remand must either (1) have been directed in a Court opinion, decision, or

order that contained a Court recognition of administrative error or (2) have been granted on the basis

of a concession of error by the Secretary. McCormick v. Principi, 16 Vet.App. 407, 411 (2002);

Briddell, 16 Vet.App. at 271-72. The Court will not "investigate at the EAJA prevailing-party stage

the validity, type, or nature of the administrative error." McCormick, supra. Accordingly, in the

instant case, because the Court's remand was expressly predicated, in part, on the Court's finding that

the Board erred under 38 U.S.C. § 7104(a) and (d)(1) in not discussing § 4.49, see Abbey I, 2001 WL

1181652, at *2, the appellant was a prevailing party for EAJA purposes. See 28 U.S.C.

§ 2412(d)(1)(A); Sumner and McCormick, both supra.

The Secretary does not defend his position in response to the appellant's allegation that the

Secretary's position was not substantially justified, and the Secretary does not assert the affirmative

defense that special circumstances make an award unjust. See Cullens, supra (noting that "[o]nce

an appellant has alleged a lack of substantial justification, the burden shifts to the Secretary to prove

that VA was substantially justified in its administrative and litigation positions"); McCormick,

16 Vet.App. at 412 (determining that, "[u]nder the EAJA, the Secretary has affirmative defenses to

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a fee award, one of which is to demonstrate that his position at both the administrative (BVA) and

litigation (Court) stages was 'substantially justified'"); Chesser v. West, 11 Vet.App. 497, 502 (1998)

(noting that "'[s]pecial circumstances' is an affirmative defense as to which the government bears the

burden of raising and demonstrating that such special circumstances militate against an EAJA

award"); Cook v. Brown, 6 Vet.App. 226, 237 (1994) (concluding that Court need not address

whether Secretary's position was "substantially justified" when Secretary did not assert such a

defense but expressly conceded that issue), aff'd, 68 F.3d 447 (Fed. Cir. 1995). Hence, the only

remaining issue is the appropriate EAJA fee to be paid for the work of nonattorney-practitioner

Stewart, who, according to records of the Court, has been certified to practice before this Court under

the supervision of Mr. Stichman in accordance with subsection (b)(1) of Rule 46.

A. VBA § 403

New VBA § 403 provides:

The authority of the United States Court of Appeals for Veterans

Claims to award reasonable fees and expenses of attorneys under

section 2412(d) of title 28, United States Code, shall include authority

to award fees and expenses, in an amount determined appropriate

by the United States Court of Appeals for Veterans Claims, of

individuals admitted to practice before the Court as non[]attorney

practitioners under subsection (b) or (c) of Rule 46 of the Rules of

Practice and Procedure of the United States Court of Appeals for

Veterans Claims.

VBA § 403 (emphasis added).

Rule 46(b) and (c) allows nonattorney practitioners to practice before this Court under the

following circumstances:

(b) Admission of Nonattorney Practitioners to Practice. A

nonattorney of good moral character and repute who is --

(1) under the direct supervision (including presence at any oral

argument) of an attorney admitted to the bar of the Court, or

(2) employed by an organization which is chartered by

Congress, is recognized by the Secretary of Veterans Affairs for

claims representation, and provides a statement signed by the

organization's chief executive officer certifying to the employee's–

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(A) understanding of the procedures and jurisdiction

of the Court and of the nature, scope, and standards of its

judicial review; and

(B) proficiency to represent appellants before the

Court

may be admitted to practice before the Court upon filing with the

Clerk a completed application accompanied by the applicable fee

(payable by check or money order). In making the statement under

this paragraph, the chief executive officer should be aware that

knowledge of and competence in veterans law and the administrative

claims process does not in and of itself connote competence in

appellate practice and procedure.

(c) Appearance in a Particular Case. On motion and a

showing of good cause, the Court may permit any attorney or

nonattorney practitioner not admitted to practice before the Court, or

any other person in exceptional circumstances, to appear on behalf of

a party or amicus for the purposes of a particular case. Whenever a

person is admitted to practice under this subsection, the person will

be deemed to have conferred disciplinary jurisdiction upon the Court

for any alleged misconduct in the course of, in the preparation for, or

in connection with any proceeding in that case.

U.S. VET . APP . R. 46(b)(1), (b)(2), (c).

Rule 46 further requires that "[e]ach notice of appearance and pleading filed by a nonattorney

practitioner must include the name, address, and signature of the responsible supervising attorney

under subsection (b)(1) or the identification of the employing organization under subsection (b)(2)."

U.S. VET . APP . R. 46(d)(3). The Court has held that the work of attorney-supervised nonattorney

practitioners and attorney-supervised law students is "compensable under the EAJA at an appropriate

rate". McCracken v. Principi, 14 Vet.App. 269, 274 (2001) (citing Sandoval v. Brown, 9 Vet.App.

177, 181 (1996) (holding EAJA fees available for work of attorney-supervised law students)).

"'The starting point in interpreting a statute is its language.'" Lee (Raymond) v. West,

13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).

As this Court explained in Lee:

The "plain meaning [of a statute] must be given effect unless a 'literal

application of [the] statute [or regulation] will produce a result

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demonstrably at odds with the intention of its drafters.'" Gardner v.

Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner

v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd [sub nom. Brown v.

Gardner], 513 U.S. 115 . . . (1994); Fagan[ v. West], 13 Vet.App.

[48,] 52 [(1999)]; Curtis[ v. West], 11 Vet.App. [129,] 133 [(1998)].

"If the intent of Congress is clear, that is the end of the matter".

Skinner v. Brown, 27 F.3d 1571, 1572 (Fed. Cir. 1994) (quoting

Chevron, U.S.A., Inc. v. Natural Res[.] Def[.] Council, Inc., 467 U.S.

837, 842 . . . (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.).

Lee (Raymond), supra. Each "part or section of a statute should be construed in connection with

every other part or section so as to produce a harmonious whole." Meeks v. West, 12 Vet.App. 352,

354 (1999) (internal quotation and citation omitted); see also Cottle v. Principi, 14 Vet.App. 329,

334 (2001); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). Also, as the United States Supreme

Court stated in United States v. Nordic Village, "the settled rule [is] that a statute must, if possible,

be construed in such fashion that every word has some operative effect." Nordic Vill., 503 U.S. 30,

35 (1992); see Colautti v. Franklin, 439 U.S. 379, 392 (1979) (determining that it is an "elementary

canon of construction that a statute should be interpreted so as not to render one part inoperative").

Although, where Congress has by statute directly addressed an issue, the reviewing court "'must give

effect to the unambiguously expressed intent of Congress'", Cottle, supra (quoting Chevron,

467 U.S. at 842-43); see also Barnhart v. Walton, 535 U.S. 212, 217-18 (2002), where a statute is

ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Brown, 513 U.S. at 118;

see also Allen (Alfred) v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (applying Brown v. Gardner

principle to rule in appellant's favor on question of statutory interpretation).

As noted above, at the time of the representation in the instant case, Mr. Stewart was an

employee of the NVLSP, which is not a veterans service organization (VSO) chartered by Congress

as described in Rule 46(b)(2); Mr. Stewart was thus admitted under Rule 46(b)(1) to practice before

this Court "under the direct supervision . . . of an [admitted] attorney" – in this case, Mr. Stichman.

See U.S. VET . APP . R. 46(b)(1). Consistent with Rule 46(d)(3)'s requirement regarding a supervising

attorney's signature on the pleadings submitted by a supervised nonattorney practitioner,

Mr. Stewart's EAJA application was co-signed by Mr. Stichman, as his supervising attorney. See

McCracken, 14 Vet.App. at 272-74 (holding EAJA fees not available for work of nonattorney

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practitioner admitted to practice under attorney supervision in accordance with Rule 46(b)(1) where

supervising attorney did not sign appellant's pleadings filed in appeal of Board decision).

The term "nonattorney practitioner" in section 403 includes those admitted to practice before

this Court pursuant to subsections (b)(1) or (b)(2) as well as those appearing under subsection (c) of

Rule 46, which provides for the appearance of a nonattorney practitioner for purposes of a particular

case without regard to attorney supervision. Hence, in order to read VBA § 403 so as to give effect

to all its parts (the references to all of subsection (b) as well as to subsection (c) of Rule 46), see

Nordic Vill., Colautti, Cottle, Meeks, and Talley, all supra, that provision must be read to permit this

Court to award EAJA fees "in an amount determined appropriate" for the practice before this Court

of both unsupervised nonattorney practitioners and supervised nonattorney practitioners, such as

Mr. Stewart.

B. Reasonable Fees

The Court must next determine what amount constitutes reasonable attorney fees in this case.

See 28 U.S.C. § 2412(d)(2)(A); Teten v. Principi, 16 Vet.App. 112, 118 (2002); Perry v. West,

11 Vet.App. 319, 327 (1998). "The Court has wide discretion in the award of attorney fees under

the EAJA." Chesser, 11 Vet.App. at 501 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983),

Chiu v. United States, 948 F.2d 711, 713 (2001), and Vidal v. Brown, 8 Vet.App. 488, 493 (1996)).

"[T]he 'product of reasonable hours times a reasonable rate' normally provides a 'reasonable'

attorney's fee." Blum, 465 U.S. at 897 (quoting Hensley, 461 U.S. at 433). In determining

reasonableness, the Court will consider whether the hours claimed are (1) unreasonable on their face;

(2) otherwise contraindicated by the factors for determining reasonableness itemized in Hensley,

461 U.S. at 430 n.3, or Ussery v. Brown, 10 Vet.App. 51, 53 (1997); or (3) persuasively opposed by

the Secretary. Chesser, 11 Vet.App. at 502.

Section 403 also addresses the issue of fee reasonableness and provides that nonattorney

practitioners may be awarded EAJA fees "in an amount determined appropriate by the United States

Court of Appeals for Veterans Claims." VBA § 403 (emphasis added). This clause provides this

Court with wide discretion in determining what fee is "appropriate" for the work of a particular

nonattorney practitioner.

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The Committees on Veterans' Affairs stated in their Explanatory Statement regarding the

final version of VBA § 403:

The Committees expect that in determining the amount of reasonable

fees payable to non[]attorney practitioners, the Court will apply the

usual rules applicable to fees for the work of other non[]attorneys

such as paralegals and law students based upon the prevailing market

rates for the kind and quality of the services furnished. 28 U.S.C.

§ 2412(d)(2)(A). See[] Sandoval[, supra].

148 CONG . REC. S11338 (daily ed. Feb. 18, 2002); 148 CONG . REC. H9006-07 (daily ed. Feb. 14,

2002).

As to determining the prevailing market rate for EAJA fees, in Blum, the U.S. Supreme Court

stated that reasonable attorney fees under the Civil Rights Attorneys Fees Award Act of 1976 were

to be "calculated according to the prevailing market rates in the relevant community, regardless

of whether plaintiff is represented by private or non-profit counsel." Blum, 465 U.S. at 895

(emphasis added). It is clear that Supreme Court caselaw regarding various attorney-fee statutes

applies generally to the definition of reasonable fees under the EAJA. See Buckhannon Board &

Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 603 n.4 (2001) (noting

that Congress "has authorized the award of attorney's fees to the 'prevailing party' in numerous

statutes" and that the Supreme Court has "interpreted these fee-shifting provisions consistently");

Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002) (concluding that

Supreme Court's construction in Buckhannon, supra, of prevailing-party status "applies with equal

force and effect to the EAJA"), cert. denied, 123 S. Ct. 871 (2003); Thayer v. Principi, 15 Vet.App.

204, 210-11 (2001) (holding that Supreme Court's definition of prevailing party in Buckhannon,

supra, applied to the EAJA). Here, the "relevant community", as described in Blum, supra, is this

Court and its unique system where, under Rule 46(b), both unsupervised nonattorney practitioners

as well as nonattorney practitioners supervised by an attorney admitted to the bar of the Court may

represent a VA claimant (including the presentation of oral argument), see U.S. VET . APP . R. 46(b),

(c), (d), and, with respect to that representational function, their role is more closely akin to an

attorney than to a paralegal. As the Supreme Court stated in Blum:

In seeking some basis for a standard, courts properly have required

prevailing attorneys to justify the reasonableness of the requested rate

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or rates. To inform and assist the court in the exercise of its

discretion, the burden is on the fee applicant to produce satisfactory

evidence – in addition to the attorney's own affidavits – that the

requested rates are in line with those prevailing in the community

for similar services by lawyers of reasonably comparable skill,

experience, and reputation. A rate determined in this way is

normally deemed to be reasonable, and is referred to – for

convenience – as the prevailing market rate.

465 U.S. at 896 n.11 (emphasis added). The Supreme Court in Blum recognized that the "'quality

of [attorney] representation' . . . generally is reflected in the reasonable hourly rate" calculated

according to the prevailing market rate. Id. at 895, 898-99.

In Raney, the United States Court of Appeals for the Federal Circuit (Federal Circuit)

discussed a "satisfactory evidence" test for determining attorney fees and noted that "something more

than an attorney's own affidavit is required to establish the prevailing market rate for attorney[] fees."

Raney, 222 F.3d at 938. The Federal Circuit concluded that "in future cases, the trial court should

demand adequate proof from individuals familiar with the market of the community billing rate

charged by attorneys of equivalent skill and experience performing services of similar complexity."

Ibid. (emphasis added).

In Wilson I, the Court concluded that experience was not an appropriate factor to be

considered when determining the prevailing market rate for a nonattorney practitioner; the Court's

opinion there did not take into account the enactment of VBA § 403. In this regard, VBA § 403

requires a different outcome from that in Wilson I. Recognizing that the skill and experience of both

supervised and unsupervised nonattorney practitioners admitted to practice in this Court may be

exceptional, the Court will consider these factors for determining reasonable fees for these

practitioners. Furthermore, there is no indication in the language of VBA § 403 that suggests that

experience cannot be a factor in determining the "appropriate" EAJA fees; to the contrary, section

403 itself constitutes a recognition of the special role of nonattorney practitioners who practice

before this Court.

In the instant case, Mr. Stewart sets forth in his affidavit his extensive experience litigating

veterans' claims, including the following: (1) He previously worked for a Secretary-recognized VSO

for 25 years before retiring, and his duties in that position included being a supervisor; (2) he was

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admitted as a nonattorney practitioner before this Court in 1995 and has represented appellants in

over 200 cases on appeal; and (3) he is currently a senior litigation paralegal for the NVLSP. Appl.,

Exh. D. Consequently, the Court holds that under VBA § 403 an EAJA fee of $120 per hour for Mr.

Stewart is justified as a fee that is "reasonable" and "appropriate" based on his reputation, skill, and

special expertise and qualifications as an experienced advocate in veterans law. VBA § 403;

28 U.S.C. § 2412(d)(2)(A); see Blum, Raney, and Chesser, all supra; see also McCracken,

14 Vet.App. at 274; Sandoval, supra. The Court will therefore approve a fee for his services in the

amount of $120 per hour and grant the EAJA application. See Pentecost v. Principi, __ Vet.App.

__, No. 00-2083(E) (Sept. 24, 2003).

III. Conclusion

Upon consideration of the foregoing analysis and the pleadings of the parties, the Court

grants the appellant's EAJA application in full, in the amount of $2,647.15.

APPLICATION GRANTED.

Separate Views

STEINBERG, Judge: I am satisfied that the new provisions of VBA § 403 are applicable

to the award of EAJA fees for the attorney-supervised work of Mr. Stewart. I write separately to

discuss a possible conflict between the apparent plain meaning of the statutory language of VBA

§ 403 and the congressional intent expressed in the legislative history underlying the provision.

In accordance with VBA § 403, an unsupervised nonattorney practitioner who is an

employee of a recognized VSO that has been chartered by Congress (see U.S. Vet. App. R 46(b)(2)

(noting that nonattorney "employed by an organization which is chartered by congress" and

"recognized by the Secretary of Veterans Affairs for claim representation . . . may be admitted to

practice before the Court")) may now file an EAJA application without the signature of an attorney

and, as the following summary of legislative history shows, that change was the principal purpose

of Congress in enacting VBA § 403. In light of the supervising-attorney-sign-off requirement in

subsection (d)(3) of our Rule 46, however, this change could not apply to supervised nonattorney

practitioners, such as Mr. Stewart. U.S. VET . APP . R. 46(d)(3) ("[e]ach notice of appearance and

14

pleading filed by a nonattorney practitioner must include the name, address, and signature of the

responsible supervising attorney under subsection (b)(1)"). Because of this difference between

nonattorney practitioners practicing in this Court under subsection (b)(1) and subsection (b)(2) of

Rule 46 in terms of attorney supervision and the sign-off requirement, I believe that the legislative

history of VBA § 403 should be examined to determine whether it demonstrates a clear and

unequivocal intent that this remedial provision not be applied to supervised nonattorney

practitioners. See In re Fee Agreement of Smith, 1 Vet.App. 492, 506 (1991) (Steinberg, J.,

concurring) (outlining caselaw holding that language of statute "'must yield to clear contrary

evidence of legislative intent'" (quoting Nat'l R.R. Passenger Corp. v. Passengers Ass'n,

414 U.S. 453, 458 (1974)) and concluding that "facially unambiguous language is not conclusive

because unequivocal, repeated, totally consistent, and highly authoritative legislative history provides

a clear expression of legislative intent to the contrary").

The legislative history of VBA § 403 focused primarily on EAJA fees for unsupervised

nonattorney practitioners who are employed by a recognized VSO that has been chartered by

Congress. The report of the Senate Committee on Veterans' Affairs and the Explanatory Statement

of the two Committees on Veterans' Affairs on the compromise agreement ultimately enacted as the

VBA both evidence clearly that the congressional intent underlying VBA § 403 was to eliminate the

attorney-sign-off requirement for EAJA applications to be submitted by an otherwise unsupervised

VSO-employed nonattorney practitioner. S. REP. NO . 107-234, at 19 (2002); 148 CONG . REC. H9006

(daily ed. Nov. 14, 2002); 148 CONG . REC. S11338 (daily ed. Nov. 18, 2002). The Senate

Committee report noted that the proposed change would "allow VSOs to be awarded fees under the

EAJA for representation provided to VA claimants by their employee non[]attorney practitioners

without the requirement that [the] attorney . . . sign the EAJA application"; however, neither that

report nor the Explanatory Statement addressed supervised non-VSO nonattorney practitioners. S.

REP. NO . 107-234, at 19. Indeed, the elimination of the sign-off requirement for unsupervised VSO

nonattorney practitioners was the stated purpose of section 4 of S. 2079, introduced on April 9, 2002,

by Senator Rockefeller, which bill formed the basis for section 503 of S. 2237 as reported by the

Senate Committee, S. REP. NO . 107-234, at 2 (noting that S. 2237 as amended "include[ed]

provisions from . . . S. 2079"), the provisions of which were identical to those enacted as VBA §

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403; Senator Rockefeller stated that under his bill "unsupervised non[]attorneys [would] be given

access to fee compensation under the EAJA[, which would allow] veterans organizations to represent

even more veterans." 148 CONG . REC. S2416 (daily ed. Apr. 9, 2002).

If sole reliance were to be placed on the above-stated purpose as evidencing the only

congressional intent, we could not apply VBA § 403 to an application submitted by a supervised

nonattorney practitioner practicing under Rule 46(b)(1), because Rule 46(d)(3) would not permit

such a pleading to be filed without the signature of a supervising attorney. Hence, we would have

to construe the statutory provision either as doing more than eliminating the attorney sign-off

requirement for unsupervised nonattorney practitioners employed by a VSO or construe the provision

as applicable only to eliminating that sign-off requirement notwithstanding the statutory language

of subsections (b)(1), (b)(2), and (c) of Rule 46. See Nat'l R.R. Passenger Corp. and In Re Fee

Agreement of Smith, both supra. The former interpretation is appropriate for two reasons. First, none

of the above legislative history suggests that removing the attorney sign-off requirement for

unsupervised nonattorney practitioners was the only intended effect of VBA § 403, even though it

might have been its primary purpose. Second, one piece of legislative history offers the broader

interpretation that includes both supervised and unsupervised nonattorney practitioners under VBA

§ 403: In a floor statement on November 14, 2002, on final passage of the compromise agreement

on S. 2237 that was thereafter enacted as the VBA, Representative Evans, the ranking minority

member of the House Committee on Veterans' Affairs, stated: "Under the bill, non[]attorneys who

are permitted to practice before the Court of . . . Appeals [for Veterans Claims] will be able to

qualify for fees under the [EAJA] even if they are not supervised by an attorney." 148 CONG . REC.

H9003 (daily ed. Nov. 14, 2002) (emphasis added).

Hence, notwithstanding the lack of articulated congressional intent in the legislative history

from the two authorizing committees to benefit supervised nonattorney practitioners, the full

legislative history, although generally pointing toward a more narrow purpose, does not contain the

kind of unequivocal and consistent "clear contrary evidence of legislative intent" that would be

necessary to countermand an essentially unambiguous statutory provision. Nat'l R.R. Passenger

Corp., supra; see In Re Fee Agreement of Smith, supra.

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Accordingly, as the Court's opinion holds, VBA § 403 should be applied so as to give effect

to all its parts, see United States v. Nordic Vill., 503 U.S. 30, 35 (1992); Colautti v. Franklin,

439 U.S. 379, 392 (1979); Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Meeks v. West,

12 Vet.App. 352, 354 (1999); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992), and in order to

resolve any interpretive doubt in favor of a result that would provide a more competitive EAJA fee

for a veteran's representative, see Brown v. Gardner, 513 U.S. 115, 118 (1994); Allen (Alfred) v.

Brown, 7 Vet.App. 439, 448 (1995). The result is, as the Court holds today, that VBA § 403 is

applicable to supervised nonattorney practitioners such as Mr. Stewart.

17