Rodulfa v. United States

• Decision Date: 09 January 1969
• Docket Number: Civ. A. No. 635-65.
• Citation: 295 F. Supp. 28
• Parties: Patrocinia L. Vda RODULFA, Plaintiff, v. UNITED STATES of America and Administrator of Veterans Affairs, Defendants.
• Court: U.S. District Court — District of Columbia

295 F. Supp. 28

Patrocinia L. Vda RODULFA, Plaintiff, v. UNITED STATES of America and Administrator of Veterans Affairs, Defendants.

Civ. A. No. 635-65.

United States District Court District of Columbia.

January 9, 1969.

Henry F. Lerch and Robert L. Pillote, Washington, D. C., for plaintiff.

David V. Seaman, Department of Justice, Washington, D. C., for defendants.

OPINION

HOLTZOFF, District Judge.

The Court has before it an application or a motion on the part of plaintiff's counsel for an amendment of the judgment in this action to provide for an allowance of counsel fees. The action was brought against the United States for benefits under the National Service Life Insurance Act and for compensation for the death of a veteran.

Only the second aspect of the claim is before the Court at this time, as the first aspect was dismissed. By a recent provision of law, a person recovering damages against the Government is entitled to recover costs. This was not the fact previously. Unfortunately, however, under our system of law, unlike the English system, taxable costs do not include attorney's fees or counsel fees, so that taxable costs never make the successful party whole. In fact, under our system of law, a person who is successful in the litigation is a part loser because he has to pay his own expenses and counsel fees, except a few minor items that are taxable as costs.

In England taxable costs include attorney's and counsel fees, and the successful litigant is made whole. In the United States, the Court in its discretion, in appropriate cases, may allow counsel fees for the successful plaintiff out of the recovery, on the theory that the successful efforts of counsel have created a fund, and that counsel fees and attorney's fees should be paid out of the fund.

The Court knows of no valid reason why this should not be done in instances such as this. For example, this is expressly permitted under the Federal Tort Claims Act, 28 U.S.Code § 2678, which authorizes the Court to award counsel fees not exceeding a specified percentage out of any recovery under that statute. The maximum permitted under the statute in its present form is 25 percent of the recovery. The laws relating to veterans contain very strict limitations on counsel fees for prosecuting claims before the Veterans Administration. These prohibitions are salutary and desirable because there is no reason why any counsel should be employed to prosecute any claim for benefits before the Veterans Administration and ordinarily no counsel are employed. Obviously, the purpose of the limitation is to prevent unscrupulous lawyers from soliciting claims of that kind.

Here, however, we have a lawsuit. The situation in actions for veterans' benefits, after they have been administratively denied, is...