Stricker v. McDonough
| Docket Number | 23-1920 |
| Decision Date | 23 June 2023 |
| Parties | JOYCE L. STRICKER, Appellant, v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Joyce Stricker, By Her Representative
APPELLANT'S APPLICATION FOR AN AWARD OF ATTORNEYS FEES AND EXPENSES PURSUANT TO 28 U.S.C. § 2412(d)
Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (1994), and the Court's Rule 39 Appellant, through counsel, seeks a total fee in the amount of $3,443.32.
The basis for the application is as follows:
Grounds for an Award
This Court has identified four elements as being necessary to warrant an award by the Court of attorneys fees and expenses to an eligible party pursuant to the EAJA. These are: (1) a showing that the appellant is a prevailing party; (2) a showing that the appellant is eligible for an award; (3) an allegation that the government's position is not substantially justified; and (4) an itemized statement of the fees sought. Owens v. Brown, 10 Vet.App. 65, 66 (1997) (quoting Bazalo, 9 Vet.App. at 308). See also 28 U.S.C. §§ 2412(d)(1)(A),(B).
As will be demonstrated below, Appellant satisfies each of the above-enumerated requirements for EAJA.
In Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835 (2001) (hereafter "Buckhannon"), the Supreme Court explained that in order to be a prevailing party the applicant must receive "at least some relief on the merits" and the relief must materially alter the legal relationship of the parties. 532 U.S. at 603-605. The Federal Circuit adopted the Buckhannon test in Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed. Cir. 2002) and applied it to an EAJA applicant. The Federal Circuit explained in Rice Services, LTD. v. United States, that "in order to demonstrate that it is a prevailing party, an EAJA applicant must show that it obtained an enforceable judgment on the merits or a court ordered consent decree that materially altered the legal relationship between the parties, or the equivalent of either of those." 405 F.3d 1017, 1025 (Fed. Cir. 2005).
In Zuberi v. Nicholson, 19 Vet.App. 541 (2006), this Court explained that the Federal Circuit case of Akers v. Nicholson, 409 F.3d 1356 (Fed. Cir. 2005) 19 Vet.App. at 547 (internal quotations omitted). The Court held in Zuberi that Motorola provided the proper test for prevailing party. Id. Next in Kelly v. Nicholson, 463 F.3d 1349 (Fed. Cir. 2006), the Federal Circuit held that:
To be considered a prevailing party entitled to fees under EAJA, one must secure some relief on the merits. Securing a remand to an agency can constitute the requisite success on the merits. [W]here the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing party ... without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction by the court.
Id. at 1353 (internal citations and quotations omitted).
The Appellant in the instant matter is a prevailing party. In this case, the parties agreed to a joint motion for remand of the decision of the Board of Veterans' Appeals which denied entitlement to revision of an August 1967 rating decision based on CUE. The remand was based upon the Board's error in failing to provide adequate reasons and bases for its decision. The Court issued a remand order on June 23, 2023. Based upon the foregoing, Ms. Stricker is a prevailing party.
Appellant also satisfies the EAJA requirement that his net worth at the time her appeal was filed did not exceed $2,000,000. 28 U.S.C. § 2412(d)(2)(B). Ms. Stricker had a net worth under $2,000,000 on the date this action was commenced. See Paragraph 3 of the fee agreement filed with the Court. Therefore, Ms. Stricker is a person eligible to receive an award under the EAJA.
In White v. Nicholson, 412 F.3d 1314 (Fed. Cir. 2004) the Federal Circuit applied the totality of the circumstances test and noted that "EAJA requires that the record must supply the evidence of the Government's substantial justification." 412 F.3d at 1316. The Secretary's position during proceedings before the Agency was not reasonable, either in law or in fact, and accordingly the Secretary's position was not substantially justified at the administrative stage in this case. As evidenced by the joint motion for remand filed in this case, there is nothing substantially justified in the Board's error in failing to provide adequate reasons and bases for its decision as required by 38 U.S.C. § 7104(d)(1). Moreover, there is no evidence that special circumstances exist in Appellant's case that would make an award of reasonable fees and expenses unjust. 28 U.S.C. § 2412(d)(1)(A).
Appellant has claimed a reasonable amount of attorneys fees, predicated upon "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Ussery v. Brown, 10 Vet.App. 51, 53 (1997) ).
Attorney, Michael S. Just, from the law firm of Just Law worked on this case. Michael Just graduated from Roger Williams University Law School in 2008 and the Laffey Matrix[1] establishes that $532.00 is the prevailing market rate for an attorney with his experience. James Perciavalle, a non-attorney practitioner admitted before the Court, also worked on this case. Attached as Exhibit A to this fee petition are the hours worked. Appellant seeks attorneys' fees at the rate of $239.74 per hour for Mr. Just for representation services before the Court.[2] Appellant seeks fees at the rate of $120.00 per hour for Mr. Perciavalle. These rates per hour, multiplied by the number of hours billed (26.1) results in a total attorney's fee amount of $3,443.32.
I, Michael Just, am the lead counsel in this case. I certify that I have reviewed this billing statement and am satisfied that it accurately reflects the work performed. As such, I hereby request that the Court grant this petition and award attorney's fees in the amount of $3,443.32.
3/15/23 - discussed case with The Veterans Advocates Group; reviewed BVA decision and documents provided; conducted preliminary legal research; took notes re issues and potential arguments for appeal to the Court; prepared documents for case opening.
2.2 hours
4/3/23 - receive documents from client; finalize documents and submit appeal paperwork to Court; update file.
.4 hours
4/3/23 - review notice of docketing for BVA decision transmittal and RBA notice; calendar due dates; update file.
.2 hours 5/8/23 - review transmitted BVA decision; update file.
.1 hours 5/23/23 - review Aee notice of appearance; update file.
.1 hours 5/25/23 - draft and file motion to expedite.
.2 hours 5/26/23 - review Court order granting motion to expedite; update file and calendar.
.2 hours 6/2/23 - review notice to file brief; update calendar and file.
.1 hours 6/2/23 - review RBA notice; calendar deadline for RBA dispute; update file. .1 hours
6/2/23 - receive RBA; upload disc and review to ensure BVA decision on appeal is first item; update file.
.2 hours 6/2/23 - review PBC order; update calendar and file.
.1 hours 6/2/23 - Begin reviewing the RBA (pages 1-900); take notes on substantive and procedural evidence.
6/3/23 - Continued reviewing the RBA (pages 901-1700); take notes on substantive and procedural evidence
2.7 hours
6/4/23 - Continued reviewing the RBA (pages 1701-2500); take notes on substantive and procedural evidence.
2.0 hours
6/4/23 - Complete reviewing the RBA (pages 2501-3114); take notes on substantive and procedural evidence.
6/5/23 - Reviewed RBA and notes previously taken concerning RBA review in preparation for drafting PBC memo. Conducted legal research.
1.8 hours 6/5/23 - Began drafting PBC memo. Additional research, including caselaw involving muscle injuries.
3.1 hours
6/6/23 - Continued working on the draft of the PBC memo. Additional research. Edited PBC memo based on reviewer's suggestions. Finalized PBC memo.
6/6/23 - E-mailed PBC memo to VA counsel and Court's central legal staff (CLS). Prepared and filed certificate of service. Reviewed Court's notice that certificate of service had been filed.
.2 hours
6/15/23 - Reviewed RBA, notes and PBC memo in preparation for PBC with VA counsel and CLS. Participated in PBC. Updated notes regarding proposal for remand. Contacted client. Contacted supervising attorney regarding the proposal for remand.
1.5 hours
6/20/23 - Reviewed RBA and PBC memo in preparation for reviewing joint motion for remand (JMR) drafted by VA counsel. Consulted with supervising attorney regarding the draft JMR.
1.0 hours
6/21/23 - Reviewed JMR filed with the Court and ensured all revisions were included in the JMR as filed.
.5 hours 6/22/23 - prepare EAJA petition and exhibits review for accuracy and completeness.
1.4 hours 6/23/23 - reviewed remand order; updated file contacted client outlining case status.
.3 hours 6/23/23 - review...
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