Avgoustis v. Shinseki

• Decision Date: 06 April 2011
• Docket Number: No. 2010–7092.,2010–7092.
• Citation: 639 F.3d 1340
• Parties: Stanley J. AVGOUSTIS, Claimant–Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

639 F.3d 1340

Stanley J. AVGOUSTIS, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2010–7092.

United States Court of Appeals, Federal Circuit.

April 6, 2011.

Sean A. Ravin, of Washington, DC, argued for claimant-appellant.Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director.Before BRYSON, DYK, and PROST, Circuit Judges.DYK, Circuit Judge.

Appellant Stanley J. Avgoustis (“Avgoustis”) applied for attorneys' fees as a prevailing party under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The United States Court of Appeals for Veterans Claims (“Veterans Court”) disallowed recovery for certain items involving client communications because the statements did not describe the purpose of the activity sufficiently to determine if the charges were reasonable. See Avgoustis v. Shinseki, No. 08–1524, slip op. at 3, 2010 WL 114190 at *2–*3 (Vet.App. Jan. 13, 2010). Avgoustis argued that requiring a more detailed description would violate his attorney-client privilege. The Veterans Court held that requiring general descriptions of the items would not violate the attorney-client privilege. We affirm.

Background

At an earlier stage in these proceedings, Avgoustis appealed an adverse Board of Veterans' Appeals (“Board”) decision to the Veterans Court. The Board had found that he did not submit new and material evidence sufficient to reopen his claim for service connection for post-traumatic stress disorder. Pursuant to an agreement by the parties, the Veterans Court remanded the case to the Board for further proceedings to consider additional evidence discovered by Avgoustis.

Subsequently, Avgoustis submitted an EAJA application to the Veterans Court for attorneys' fees and expenses, claiming 31.6 attorney hours and 5.1 paralegal hours for a total of $6,193. The Veterans Administration (“VA”) conceded that Avgoustis satisfied most of the requirements for attorneys' fees under EAJA. He was a prevailing party; he had a net worth below $2,000,000; and the VA's position was not substantially justified. The only disputed issue was whether Avgoustis had properly provided “itemized statement[s] ... stating the actual time expended” as required by 28 U.S.C. § 2412(d)(1)(B).

The VA opposed the application in part, arguing that the fees for twenty six of the billing entries should be denied because the descriptions were not sufficiently detailed. The entries in question each stated only that Avgoustis' lawyer had “review[ed] client correspondence” or “draft[ed] client correspondence.” J.A. 23–24. Avgoustis' lawyer billed 0.2 hours for each of the twenty six disputed entries for a total of 5.2 hours. Avgoustis argued that requiring more detailed billing statements disclosing the subject matter of his communications with his attorney would violate attorney-client privilege.

The Veterans Court agreed with the VA that the disputed entries “fail[ed] to indicate the purpose of these billed activities and, therefore, are simply inadequate to permit effective review of the appellant's application.” Avgoustis, slip op. at 3. The Veterans Court found no violation of the attorney-client privilege, concluding that

[t]he entries in this case could easily have contained sufficient additional detail without disclosing privileged information. For example, the entries do not distinguish between communications updating the client as to the case's status, seeking the client's input as to the issues raised, discussing the terms of the proposed joint motion, and seeking approval for actions that require the consent of the client. These distinct forms of client contact can easily be described in general terms without disclosing specific details that may be protected by privilege.

Id. at 4. The Veterans Court accordingly reduced the fee award by 2.5 hours (or $437.50). Id. at 3. Avgoustis timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a).

Discussion

Under 38 U.S.C. § 7292(a) and (c), our review of decisions of the Veterans Court is limited to a “challenge to the validity of any statute or regulation or any interpretation thereof....” However, “applying a dispositive legal standard to undisputed facts is essentially a matter of law, not fact.” Wood v. Peake, 520 F.3d 1345, 1351 (Fed.Cir.2008). Here, the facts are undisputed. On appeal, Avgoustis argues only that the Veterans Court erred in holding that requiring disclosure of the general subject matter of itemized communications does not violate attorney-client privilege.

I

The VA first argues that EAJA supersedes the attorney-client privilege by requiring “itemized statement[s].” We disagree. The Supreme Court has established that “courts may take it as a given that Congress has legislated with an expectation that the common law principle will apply except when the statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). ¹ In particular, the Supreme Court has held that a statute abrogates common law privileges only if “the language declaring the legislative will [is] so clear as to prevent doubt as to its intent and limit.” Bassett v. United States, 137 U.S. 496, 505–506, 11 S.Ct. 165, 34 L.Ed. 762 (1890) (narrowly construing Utah statute that created exception to spousal privilege for crimes committed by one spouse against another and refusing to find that it abrogated spousal privilege when husband was charged with polygamy). More recently, in Upjohn Co. v. United States, 449 U.S. 383, 398, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the Court stated that a tax summons issued under 26 U.S.C. § 7602 was “subject to ... traditional privileges and limitations” and that the statutory provision and legislative history did not “suggest[ ] an intent on the part of Congress to preclude application of [a traditional limitation like] the work-product doctrine.” Citing Upjohn, two courts of appeals have recently held that “[s]tatutes requiring disclosure, but silent on the question of privilege, do not override customary privileges.” United States v. Forrester, 616 F.3d 929, 942 (9th Cir.2010); United States v. Danovaro, 877 F.2d 583, 588 (7th Cir.1989) (both cases hold that a statute which mandates disclosure of a wiretap application if fruits of wiretap are used in court did not abrogate government's customary privilege to withhold (i.e., redact) information critical to informant safety).

The attorney-client privilege is, of course, a common law privilege. Although the Federal Rules of Evidence are not applicable to Veterans Court proceedings, they do apply to our court. See Fed.R.Evid. 1101(a). Under the Federal Rules, the attorney-client privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,” Fed.R.Evid. 501, except to the extent the rules governing waiver of the privilege codified at Fed.R.Evid. 502 differ from the common law.

Here, there is no statutory language abrogating the privilege. The EAJA statute merely provides, in pertinent part:

A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed.

28 U.S.C. § 2412(d)(1)(B) (emphasis added). The statute does not even discuss the nature of any disclosures required in “an itemized statement,” and it certainly does not speak directly to the attorney-client privilege. Moreover, the legislative history does not suggest that the privilege was being abrogated. The relevant committee reports fail even to discuss the purpose of the “itemized statement” requirement and do not state or suggest that it was intended to supersede the attorney-client privilege. See S. Rep. 96–974, 1980 U.S.C.C.A.N. 4953 (Sept. 19, 1980); H.R. Rep. 96–1418, 1980 U.S.C.C.A.N. 4984 (Sept. 26, 1980); H.R. Rep. 96–1434, 1980 U.S.C.C.A.N. 5003 (Sept. 30, 1980) (Conf.Rep.).

Given the presumption against abrogating common law privileges absent clear legislative intent, we cannot say that the “the language declaring [a] legislative will [to revoke the attorney-client privilege is] so clear as to prevent doubt as to its intent and limit.” See Bassett, 137 U.S. at 506, 11 S.Ct. 165. In fact, we cannot see any indication that Congress intended to abrogate the attorney-client privilege, and conclude that EAJA does not do so.

II

Alternatively, the VA argues that the disclosures of general subject matter required by the Veterans Court here do not violate the attorney-client privilege. We agree. In Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court emphasized that attorneys' fee applicants under a comparable attorneys' fee statute, 42 U.S.C. § 1988, “should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” The Court elaborated that “[p]laintiff's counsel ... is not required to record in great detail how each minute of his time was expended [but] at least counsel should identify the general subject matter of his time expenditures.” Id. at 437 n. 12, 103 S.Ct. 1933. Under numerous fee-shifting statutes, courts of appeals have consistently required that attorneys' fee applicants provide the...