Jackson v. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 01-1965

DEBORAH J. JACKSON , APPELLANT ,

AND

NO . 03-1717

THOMAS W. KELLY , APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Motion For Review of Appellants' Fee Agreements

(Argued January 28, 2009 Decided April 29, 2009)

Kenneth M. Carpenter of Topeka, Kansas, for the appellants.

Edward V. Cassidy, Jr., with whom Paul J. Hutter, General Counsel; R. Randall Campbell,

Assistant General Counsel; Joan E. Moriarty, Deputy Assistant General Counsel, and David J.

Lowenstein, were on the brief, all of Washington, D.C., for the appellee.

Before GREENE, Chief Judge, KASOLD and HAGEL, Judges.

GREENE, Chief Judge: These consolidated cases present the questions of whether, under

38 U.S.C. § 7263, the Court has jurisdiction to review the fee agreements between appellants

Deborah J. Jackson and Thomas W. Kelly and their counsel Kenneth M. Carpenter and, if so,

(1) whether Mr. Carpenter is required to offset that portion of the Court's award of fees and expenses

under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), granted for work performed on

behalf of Ms. Jackson before the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

against the 30% contingency fee provided for by the parties' fee agreement, and (2) whether the work

done on behalf of Mr. Kelly at a VA regional office (RO) to obtain an earlier effective date is the

same work as that done at the Court to secure a remand eventually leading to the assignment of an

earlier effective date.

I. RELEVANT BACKGROUND

A. Jackson

On August 10, 2004, the Court issued a single-judge order affirming a July 19, 2001, Board

of Veterans Appeals (Board) decision that denied Ms. Jackson's 38 U.S.C. § 1151 claim for

compensation for post-traumatic stress disorder (PTSD). Judgment issued on September 1, 2004.

Ms. Jackson appealed and on December 30, 2005, the Federal Circuit reversed this Court's decision

and remanded the matter for further proceedings. Jackson v. Nicholson, 433 F.3d 822 (Fed. Cir.

2005). On June 6, 2006, the Court vacated the 2001 Board decision and remanded the matter. In

September 2006, Ms. Jackson filed an EAJA application for an award of $15,929.22, which included

$14,758.12 in attorney fees and $1,171.10 in expenses. The Secretary opposed that application in

December 2006.

As a result of the Court's remand, the Board awarded to Ms. Jackson $50,746.00 in past-due

benefits. Subsequently, Ms. Jackson paid to Mr. Carpenter $15,223.80, which was 30% of the total

past-due benefits awarded as contracted in their fee agreement. On September 20, 2007, the Court

granted in full Ms. Jackson's EAJA application. Additionally, Ms. Jackson filed a supplemental

EAJA application in the amount of $1,907.40 in attorney fees and $24.94 in expenses related to her

defense of the EAJA application. The Court granted the supplemental EAJA application in full and

mandate on the EAJA application issued.

On November 21, 2007, Mr. Carpenter sent to Ms. Jackson a check in the amount of

$7,664.75, representing a partial offset of the EAJA fee award against the fees paid to Mr. Carpenter

pursuant to the fee agreement. On November 26, 2007, Mr. Carpenter submitted an opposed motion

for review of the fee agreement pursuant to 38 U.S.C. § 7263(c). On November 30, 2007, the Court

recalled its EAJA mandate and entered judgment. On December 6, 2007, the Court filed Mr.

Carpenter's motion.

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B. Kelly

On January 26, 2005, the Court granted the parties' joint motion for remand of a June 3, 2003,

Board decision that had declined to reopen Mr. Kelly's previously disallowed claim for service

connection. Mandate issued the same day. On February 2, 2005, Mr. Kelly filed an application for

attorney fees and expenses under the EAJA, which the Court granted in full on March 30, 2005. The

EAJA mandate issued that same day.

On remand from the Court, and after further development before VA, Mr. Kelly was granted

service connection for Briquet's syndrome and awarded past-due benefits in the amount of

$18,035.00, from which Mr. Carpenter was paid $5,410.50 pursuant to the parties' fee agreement.

That amount was offset from the $10,305.87 previously awarded under EAJA, leaving a balance of

$4,895.37.

In September 2006, Mr. Kelly filed a Notice of Disagreement (NOD) as to the assigned

effective date of the award of service connection. After further development, Mr. Kelly was assigned

an earlier effective date and another award of past-due benefits was granted in the amount of

$4,112.00 based on the appealed effective date issue. From these funds, the veteran paid Mr.

Carpenter $1,233.60 pursuant to their fee agreement.

On December 18, 2007, Mr. Carpenter filed a motion for review of the fee agreement

pursuant to 38 U.S.C. § 7263(c). After oral argument, on January 29, 2009, Mr. Carpenter filed a

motion to withdraw his motion for review of the fee agreement.

II. CONTENTIONS OF THE PARTIES

A. Jackson

In his request for review, Mr. Carpenter seeks the Court's review of his fee agreement under

Carpenter v. Principi, 15 Vet.App. 64 (2001). The question presented is whether Mr. Carpenter's

fee agreement would be excessive and unreasonable if there was no offset against the 30%

contingent fee paid of the portion of Ms. Jackson's EAJA award that was granted for work performed

before the Federal Circuit and for work performed in defense of the initial EAJA application, i.e.,

his supplemental fee application. Mr. Carpenter argues that, while Carpenter, supra, required an

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offset for the grant of EAJA fees made in the initial application, it was unclear if this holding applied

to supplemental fees or to fees for work performed before the Federal Circuit.

The Secretary contends that Mr. Carpenter's motion for review of the fee agreement should

be denied on the basis that the Court lacks jurisdiction to review the fee agreement because there is

neither a final adverse Board decision on the fee matter nor a pending appeal before the Court on any

aspect of Ms. Jackson's case. The Secretary notes that in June 2006, the Court vacated the July 2001

Board decision and remanded the matter, and that in August 2006 mandate was issued. He further

notes that Ms. Jackson did not appeal the May 2007 RO decision that effectuated the grant of service

connection for PTSD and assigned an effective date and disability rating. The Secretary asserts,

therefore, that the Court is precluded from now reviewing the fee agreement because "the Court may

review a fee agreement only when there is a Board decision addressing a fee agreement or pursuant

to an appeal properly before the Court." Response (Resp.) at 4. If the Court assumes jurisdiction

over the fee agreement, the Secretary argues that offset of the EAJA fees awarded for work

performed before the Federal Circuit is required because "it is settled law that the work performed

at any tribunal on the same case is considered the 'same work' for offset purposes." Id. at 12.

B. Kelly

Mr. Carpenter requested that the Court advise him of whether he is obligated to offset this

Court's award of EAJA fees against the attorney's fees paid to him by Mr. Kelly. The Secretary

argues that the Court lacks jurisdiction to review the fee agreement because there is neither a final

adverse Board decision on the fee matter nor a pending appeal before the Court on any aspect of Mr.

Kelly's case. He argues that should the Court assume jurisdiction, an offset is required as the work

done to secure an earlier effective date is the same work as that done to secure an award of service

connection.

III. ANALYSIS

A. Court's Authority to Review the Fee Agreement

Section 7263 of title 38, U.S. Code, provides that "[a] person who represents an appellant

before the Court shall file a copy of any fee agreement between the appellant and that person with

the Court at the time the appeal is filed." 38 U.S.C. § 7263(c). Pursuant to section 7263, "[t]he

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Court, on its own motion or the motion of any party, may review such a fee agreement." 38 U.S.C.

§ 7263(c). However, the Court's jurisdiction to review fee agreements under section 7263(c) is

narrow. Carpenter, 15 Vet.App. at 71. "In reviewing a fee agreement under subsection (c) of . . .

section [7263] . . ., the Court may . . . order a reduction in the fee called for in the agreement if it

finds that the fee is excessive or unreasonable." 38 U.S.C. § 7263(d). Section 7263 is not, however,

jurisdictional in nature. See Wick v. Brown (In re Wick), 40 F.3d 367, 371 (Fed. Cir. 1994); In re Fee

Agreement of Cox, 10 Vet.App. 361, 366 (1997) ("[N]either [38 U.S.C. §] 5904 nor any other section

of title 38 confers jurisdiction upon the Court to review an attorney-fee agreement absent a final

Board decision over which the Court has jurisdiction."), vacated in part on other grounds, sub nom.

Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998). Rather, section 7263 authorizes the court to "review"

fee agreements between an appellant and a person representing the appellant before the Court when

an appeal is properly before the Court and when a copy of the fee agreement has been filed with the

Court at the time the appeal is filed. 38 U.S.C. § 7263(c). Thus, the Court has authority to review

fee agreements only when there is a Board decision concerning a fee agreement or pursuant to an

appeal properly before the Court. See In re Wick, 40 F.3d at 371-72 (Court has no jurisdiction over

fee agreement pertaining to case once Court's appellate jurisdiction as to case itself has been

terminated); Cox, supra; Fritz v. Nicholson, 19 Vet.App. 377, 380 (2005).

1. Jackson

The mandate of the Court is "evidence that a judgment has become final." U.S. VET .APP .

R. 41; see also 38 U.S.C. § 7291(a) (stating that decision from this Court "becomes final upon the

expiration of the time allowed for filing, under [38 U.S.C. §] 7292 . . ., a notice of appeal from such

decision, if no such notice is duly filed within such time."). At the time that Mr. Carpenter filed his

motion to review the fee agreement between himself and Ms. Jackson, the EAJA mandate had not

issued. As discussed below, an EAJA application is "a component part of an integrated case" and

not a separate action from the merits phase of the litigation. Comm'r, INS v. Jean, 496 U.S. 154,

161-62 (1990) (for purposes of EAJA, treating "civil action . . . brought . . . against the United

States", 28 U.S.C. § 2412(d)(1)(A), as "an inclusive whole, rather than as atomized line-items" and

treating EAJA application and litigation over it as "a component part of an integrated case"). Thus,

although the Court's decision regarding the underlying merits action had become final, at the time

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that Mr. Carpenter filed his motion to review the fee agreement, the EAJA portion of the appeal was

properly before the Court. The Court concludes, therefore, that because the "civil action" was

pending before the Court at the time that Mr. Carpenter filed his motion for review of the fee

agreement, the Court has jurisdiction to entertain that motion in the matter of Jackson v. Shinseki,

No. 01-1965. See Wick and Cox, both supra.

2. Kelly

Mr. Kelly's case was remanded by the Court in January 2005 and on March 30, 2005, his

EAJA application was granted in full. Mandate issued that same day. Thus, Mr. Kelly's case before

the Court became final on March 30, 2005. Mr. Carpenter has not appealed any subsequent Board

decision covered under the fee agreement. Accordingly, the Court is without jurisdiction to entertain

the motion presented by Mr. Carpenter in the case of Kelly v. Shinseki, No. 03-1717, presented for

review because there is no case currently pending before the Court and there is no Board decision

regarding the fee agreement entered into by Mr. Kelly and Mr. Carpenter. See Wick, Fritz, and Cox,

all supra.

Indeed, Mr. Carpenter recognized at oral argument that because the underlying matter at issue

here, including the Court's resolution of the EAJA application, had become final, the Court is

without jurisdiction to review the matter. Accordingly, Mr. Carpenter's January 29, 2009, motion

to withdraw his motion for review of the fee agreement will be granted.

B. Work Performed Before the Federal Circuit

The fee agreement between Ms. Jackson and Mr. Carpenter purports to cover services related

to "an appeal to the United States Court of Appeals for Veterans Claims and if required to continue

the representation of the Client before the Department of Veterans Affairs to include the Board of

Veterans' Appeals." Motion (Mot.), Exhibit (Exh.) A at 2. The fee agreement provides for payment

of "a fee equal to thirty percent (30%) of the total amount of any past-due benefits awarded to Client

. . . on the basis of the Client's [c]laim(s) with the Department of Veterans Affairs." Id. at 6. The

agreement further states that "[i]f the amount of fees paid under EAJA exceed the percentage called

for in this Agreement, the Client shall not be liable for any further fees pursuant to this Contract."

Id. at 8.

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The fee agreement does not expressly cover Mr. Carpenter's work done before the Federal

Circuit on appeal from this Court. Indeed, at oral argument, Mr. Carpenter stated to the Court that

his continued representation of Ms. Jackson before the Federal Circuit in the underlying case was

done on a pro bono basis. Thus, it is clear that the agreement does not provide for an offset of that

portion of the EAJA awarded for work performed before the Federal Circuit against the contingency

fee paid. The Court must therefore determine whether, under this fee agreement, the work performed

before the Federal Circuit but not covered in the fee agreement, is the "same work" as that performed

before this Court and VA. In doing so, the Court is mindful that "in the absence of sufficient factual

allegations supporting the parties' mutual intent," contract ambiguities are construed "against the

drafter, unless the ambiguity is patent." Dureiko v. U.S., 209 F.3d 1345, 1357 (Fed. Cir. 2000); see

Royal Ins. Co. of America v. Orient Overseas Container Line Ltd., 525 F.3d 409, 424 (6th Cir.

2008); Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 838 (7th Cir. 2002).

When an attorney fee agreement in a case before the Court contemplates direct payment by

the Secretary from past-due benefits under 38 U.S.C. § 5904(d)1, and an additional award of fees for

the "same work" is made under the EAJA,"the claimant's attorney refunds to the claimant the amount

of the smaller fee." See Federal Courts Administration Act (FCAA), Pub.L. No. 102-572, § 506(c),

106 Stat. 4506, 4513 (1992). Here, Mr. Carpenter is not seeking direct payment from the Secretary

pursuant to section 5904(d). However, in Shaw v. Gober, the Court concluded that the same offset

standard applies in cases where an attorney is not seeking direct payment by the Secretary because

"the policy underlying the proscription in section 506 [of the FCAA] against double payment for the

same legal work is inherent in the policy against an 'unreasonable' fee embodied in section[] . . .

7263(d)." 10 Vet.App. 498, 504 (1997). In Shaw, the Court discussed the general policy against

"double-dipping," stating that it was "divined from the legislative history of section 206 of Pub. L.

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38 U.S.C § 5904(d) provides for the "[p]ayment of fees out of past-due benefits" and states that "[w]hen a

claimant and an agent or attorney have entered into a fee agreement described in paragraph (2), the total fee payable to

the agent or attorney may not exceed 20 percent of the total amount of any past-due benefits awarded on the basis of the

claim." Paragraph (2) provides that a fee agreement referred to in paragraph (1) is one where the total fees payable to

the agent or attorney "(i) is to be paid to the agent or attorney by the Secretary directly from any past-due benefits

awarded on the basis of the claim; and (ii) is contingent on whether or not the matter is resolved in a manner favorable

to the claimant." 38 U.S.C § 5904(d)(2)(A).

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No. 96-481, 94 Stat. 2321, 2330 (1980), as amended by Pub. L. No. 99-80, § 3, 99 Stat. 183, 186

(1985) (found at 28 U.S.C. § 2412 note) relating to the Social Security Act (SSA)," which "contains

language that essentially mirrors that found in FCAA § 506(c)." Id. The Court observed:

The legislative history of section 206 relating to SSA explained: "Without this

amendment [precluding an attorney for a Social Security or Supplemental Security

Income (SSI) claimant from receiving both EAJA and SSA fees] it was argued,

'double dipping' was possible. Such double payments are inappropriate and deprive[]

the plaintiff of the benefits intended by EAJA." H.R. REP. NO . 99-120, pt. 1, at 148-

49 (1985) (EAJA Extension and Amendment) (Section-by-Section Analysis

describing section 3 of H.R. 2378, which was identical to provision ultimately

enacted in Pub. L. No. 99-80); see Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988)

("Congress clearly intended the two statutes to work in conjunction and that dual fee

applications [under the SSA and EAJA] are not improper as long as the lesser of any

two amounts awarded goes to the attorney's client"; indeed, "attorney working under

contingent-fee agreement can best defray the client's cost of legal services by seeking

both EAJA and SSA fees".). The House Committee report stated that, although the

attorney would be permitted "to seek recovery under both authorizations [the EAJA

and SSA] . . . [,] the attorney . . . may keep the larger fee, but must return the amount

of the smaller fee to the claimant." H.R. REP. 99-120, pt. 1, at 149.

Id. Further, in discussing the payment of fees under both 42 U.S.C. § 406, governing fee awards for

successful representation of Social Security benefit claimants, and the EAJA, the U.S. Supreme

Court determined that Congress intended the total amount of past-due benefits received by a claimant

to be increased by any EAJA award, up to 100% of the total benefits. See Gisbrecht v. Barnhart,

535 U.S. 789, 796 (2002) ("'Thus, an EAJA award offsets an award under Section 406(b), so that

the [amount of the total past-due benefits the claimant actually receives] will be increased by the . . .

EAJA award up to the point the claimant receives 100 percent of the past-due benefits'" (quoting the

Brief for the United States at 3)).

The Court has therefore concluded that "a fee agreement allowing an attorney to collect and

retain both an EAJA fee as well as a fee from the client for the same work is 'unreasonable' pursuant

to 38 U.S.C. §§ 5904 and 7263." Carpenter, 15 Vet.App. at 73; see Shaw, 10 Vet.App. at 505

(holding fee agreement was "'unreasonable' on its face to the extent that it may be read as precluding

an offset where the Court remands with a direction that the [Board] award benefits that the Court

finds are required as a matter of law."). "However, the double-payment proscription would have no

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application to the payment of fees under the EAJA and under the fee agreement where the legal work

done in connection with those fees is not the same." Id. at 504.

The definition of "same work" for EAJA offset purposes has undergone a transformation

throughout the Court's jurisprudence. In Shaw, the Court held that "same work" does not mean

"same claim." See Shaw, 10 Vet.App. at 504 (concluding that work on remand was not "same work"

as that performed to secure remand where it was "clear on the face of the appellant's contentions in

his substantive brief that any legal representation on remand will be different from that performed

here because in the Court proceedings the appellant's counsel sought only a remand to the Board and

did not seek reversal of the Board decision and a direction that benefits be awarded."). In Fritz v.

West, the Court considered the reasonableness of a fee agreement providing that no offset of an

EAJA award would be made where the Court merely remanded the claim. 13 Vet.App. 190 (1990).

On the merits of the veteran's appeal at issue in that case, the Court had granted the parties' joint

motion for remand, vacated the Board decision, and remanded the claim for readjudication. Id. at

191. The Court upheld the fee agreement provision, noting that "[u]nder Shaw, an attorney generally

may retain an entire contingency-fee amount if the representation provided before the [Board]/VA

subsequent to the attorney's work before the Court involves obtaining more relief from the

department than what the appellant received from the Court." Id. at 194; see In re Mason,

13 Vet.App. 29 (1999).

Concerned that the definition of "same work" set forth in Shaw and Fritz was too narrow, the

en banc Court later overruled Shaw and Fritz, holding that their definition of "same work" had left

"open an opportunity for the subversion of the very purpose of EAJA." Carpenter, 15 Vet.App. at

74. The fee agreement at issue in Carpenter, supra, provided that the veteran was to pay his counsel

30% of any award of past-due benefits and that an award of EAJA fees was to be offset against the

30% if the Court awarded past-due benefits, but that no offset would be made in the case of remand.

The Court noted that Congress passed the EAJA "'to eliminate financial deterrents to individuals

attempting to defend themselves against unjustified government action,'" Abbs v. Principi, 237 F.3d

1342, 1347 (Fed. Cir. 2001) (quoting H.R. Rep. No. 102-1006, at 25 (1992)); see Scarborough v.

Principi, 541 U.S. 401, 406 (2004), and that its intended purpose was "'not to provide an attorney

a greater fee than contemplated by his fee agreement," but rather to "'pay non-enhanced fees for legal

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services actually rendered,'" Carpenter, 15 Vet.App. at 75 (quoting Phillips v. General Services

Admin., 924 F.2d 1577, 1583 (Fed. Cir. 1991).

Ultimately, the Court in Carpenter determined that "representation of a client in pursuit of

a claim at all stages of the adjudication process" was the "same work" and held that "[t]o the extent

the fee agreement . . . provides that any portion of the EAJA award will not be offset against the fee

paid, or to be paid, by the veteran . . . the [counsel's] fee is excessive and unreasonable." Carpenter,

15 Vet.App. at 76 (emphasis added). Simply stated, the Court determined that all work leading to

a successful outcome of the veteran's claim was the "same work" for the purposes of EAJA. Id.; see

Brown v. Gardner, 513 U.S. 115, 118 (1994) (noting that interpretive doubt is to be resolved in

veteran's favor). The Court reasoned that defining work on remand to be different work than that

performed to secure the remand, thus allowing the attorney to retain both a contingency fee and

EAJA fees, "would improperly [allow] the EAJA fee to enhance the attorney's fee, rather than to

reimburse the veteran for the cost of representation." Carpenter, 15 Vet.App. at 76. Therefore, the

Court concluded that the failure to provide for an offset of the EAJA fees rendered the fee agreement

at issue in Carpenter, supra, excessive and unreasonable pursuant to 38 U.S.C. §§ 5904(c) and 7263.

In Ms. Jackson's underlying case, on appeal from this Court, Mr. Carpenter performed work

before the Federal Circuit that ultimately led to an award of past-due VA benefits. Applying the

meaning of "same work" adopted by the en banc Court in Carpenter, it follows that work performed

before the Federal Circuit on appeal from this Court in pursuit of securing past-due benefits is the

"same work" as that performed before this Court and VA, as it is all work on the "same claim."

Carpenter, supra. Thus, because all work performed to secure an award of past-due benefits,

regardless of the tribunal in which it is performed is the"same work" for the purposes of EAJA, the

Court holds that the EAJA fees awarded for work done before the Federal Circuit must be offset

against the 30% contingency fee paid by Ms. Jackson to Mr. Carpenter, up to 100% of the total

amount of past-due benefits. See Gisbrecht, supra. To hold otherwise would render the attorney's

fee paid under the fee agreement excessive and unreasonable. See 38 U.S.C. § 7263(d); Carpenter,

15 Vet.App. at 73.

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C. Work Performed in Defense of the EAJA Application

The fee agreement between Ms. Jackson and Mr. Carpenter provides:

It is further understood that work performed by Attorney in the preparation and

prosecution of the EAJA application itself is separately and exclusively

compensation to the Attorney. The fees, cost and expenses awarded for the

preparation and prosecution of the EAJA application shall not serve to reduce the

contingent fee owed by Client to Attorney.

Mot., Exh. A at 9. In Shaw, the Court specifically left open the reasonableness of the provision

requiring that "fees, costs and expenses awarded for the preparation and prosecution of the EAJA

application shall not serve to reduce the contingent fee owed by Client to Attorney". Shaw,

10 Vet.App. at 504 ("that issue will be best resolved in the context of a Board or party challenge to

an attorney's nonrefunding to a client of the fees-for-fees portion of an EAJA award"). Nor did the

Court deal with that issue in Carpenter, 15 Vet.App. at 92 (Steinberg, J., dissenting). However,

Carpenter plainly establishes that any fee payable under a fee agreement must be offset by any EAJA

award paid on the same claim and that separate stages of litigation are not parsed out into component

parts when determining reasonableness of a fee. Id. at 76. Thus, in determining whether offset is

required for EAJA fees awarded for litigation over the application itself, the Court must address

whether the work done to prepare and defend the EAJA application is the "same work" under the

"same claim" as that done to secure an award of past-due benefits, or whether the fees for fees

litigation is a separate cause of action and therefore not the "same claim."

Once it is determined that an appellant is a prevailing party, there is an assumption that he

or she is entitled to EAJA fees unless the position of the government was substantially justified. The

EAJA allows courts to award fees to a prevailing party other than the United States "in any civil

action." 28 U.S.C. § 2412(d)(1). As recognized by the U.S. Supreme Court in Commissioner v.

Jean, a "civil action can have numerous phases," but "the EAJA–like other fee-shifting

statutes–favors treating a case as an inclusive whole, rather than as atomized line-items." Jean,

496 U.S. at 161-62. The Supreme Court held that courts need not make a second finding of

"substantial justification" regarding any Government opposition to an EAJA fee request. Id.; see

28 U.S.C. § 2412(d)(1)(A), (1)(B) and (2)(B) (requiring EAJA application to contain an allegation

that the position of the Secretary was not substantially justified); Scarborough v. Nicholson,

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19 Vet.App. 253 (2005). An award of some "fees for fees" "would generally follow from success

in the basic EAJA application itself," Cook v. Brown, 6 Vet.App. 226, 240 (1994), because the merits

and the EAJA application comprise a single action. See Jean, supra. Thus, the filing of an EAJA

application and any ensuing litigation is merely an extension of the underlying claim for benefits.

Indeed, a claimant must have appealed a case to the Court to be entitled to EAJA fees because there

is no free-standing cause of action by an attorney to file for EAJA fees absent an underlying claim

and appeal to the Court.

"Congress intended the EAJA to cover the cost of all phases of successful civil litigation

addressed by the statute." Jean, 496 U.S. at 167. As EAJA fees are available for time spent

defending the EAJA application, it follows, therefore, that defense of the EAJA application is part

of the same "civil action" as the cause of action that gave rise to the potential eligibility for an EAJA

award. See Jean, 496 U.S. at 161 ("[A]bsent unreasonably dilatory conduct by the prevailing party

in 'any portion' of the litigation, which would justify denying fees for that portion, a fee award

presumptively encompasses all aspects of the civil action.").

Again applying the definition of "same work" set forth in Carpenter, we hold that work

performed in defense of the EAJA application constitutes the same work as that performed in pursuit

of past-due benefits before the Board, the Court, and the Federal Circuit, as EAJA is just one

component part of the larger civil action against the government. See 28 U.S.C. § 2412(d)(1); Jean,

496 U.S. at 166-67. Accordingly, because the EAJA fees for fees award is for the "same work" as

that done on the underlying claim, we further hold that that award must also be offset against the

30% contingency fee paid by Ms. Jackson to Mr. Carpenter, up to 100% of the total amount of past-

due benefits. See Gisbrecht, supra. Additionally, to the extent that the fee agreement at issue allows

for any part of the EAJA award to be added to Mr. Carpenter's 30% contingency fee, the agreement

is facially unreasonable and unenforceable. See 38 U.S.C. § 7263(d); Carpenter, 15 Vet.App. at 77

("[a]n artfully or inartfully drafted contingency fee agreement which would circumvent the letter and

spirit of EAJA [is] 'patently unreasonable on its face.'").

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III. CONCLUSION

Upon consideration of the foregoing analysis and the parties' pleadings, Mr. Carpenter's

motion to withdraw his motion for review of the fee agreement in Kelly v. Shinseki, No. 03-1717,

is GRANTED. Further, Mr. Carpenter's motion for review of the fee agreement in Jackson v.

Shinseki, No. 01-1965, is GRANTED and it is ordered that Mr. Carpenter refund to Ms. Jackson that

portion of the past-due benefits paid to him under the fee agreement at issue consistent with this

decision.

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