Wilson v. Principi

• Decision Date: 03 December 2004
• Docket Number: No. 03-7105.,03-7105.
• Citation: 391 F.3d 1203
• Parties: Albert L. WILSON, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

391 F.3d 1203

Albert L. WILSON, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 03-7105.

United States Court of Appeals, Federal Circuit.

DECIDED: December 3, 2004.

Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, argued for claimant-appellant. With him on the brief were Nancy L. Foti and Louis J. George.

Edward P. Sullivan, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Kenneth D. Woodrow, Trial Attorney. Of counsel on the brief was Martin J. Sendek, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Of counsel were Franklin E. White, Jr., Assistant Director, and Kyle E. Chadwick, Attorney, Civil Division. Also of counsel was Michael J. Timinski, Department of Veterans Affairs.

Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

PLAGER, Senior Circuit Judge.

This case requires us to examine two sections of the Veterans Benefits Act of 2002 ("VBA"), and to determine whether, under section 402 of the Act, we have jurisdiction to decide the case before us, and whether, under section 403, the Court of Appeals for Veterans Claims properly decided the case before it.

The veteran in this case, Albert L. Wilson, seeks review of the decision of the Court of Appeals for Veterans Claims on his application for fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"). The Court of Appeals for Veterans Claims granted his application, but awarded less than the amount he requested for the non-attorney practitioner who had worked on his case. On appeal to this court, Mr. Wilson argues that the Court of Appeals for Veterans Claims wrongly failed to consider the effect of section 403 of the VBA on such awards.

The Government contends that, because Mr. Wilson did not argue below that section 403 had any effect on his case, this court lacks jurisdiction to consider the matter, citing section 402 of the VBA. The Government further argues that, even if we have jurisdiction over the appeal, prudential considerations suggest that we should decline to address the section 403 issue.

We conclude that we have jurisdiction under section 402 to decide whether the Court of Appeals for Veterans Claims wrongly failed to apply the correct law as announced in section 403. We further conclude that in the exercise of our discretion we should entertain Mr. Wilson's appeal even though he did not raise the section 403 issue below. Because the Court of Appeals for Veterans Claims erred in its understanding of the applicable law, we vacate the judgment of the Court and remand for reconsideration of Mr. Wilson's EAJA award.

BACKGROUND

1.

The dates on which various events occurred are key to understanding the issue in the case. In April 2001 Mr. Wilson filed a claim with the Board of Veterans' Appeals ("Board") seeking an increase in his service-connected disability rating. The Board denied the claim, and Mr. Wilson appealed to the Court of Appeals for Veterans Claims. In September 2001, in response to a joint motion filed by the parties pointing out administrative errors made by the Board, the Court of Appeals for Veterans Claims vacated the Board's decision and remanded for further proceedings.

Shortly thereafter Mr. Wilson filed with the Court of Appeals for Veterans Claims an application for an award of reasonable fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). He sought compensation for work by non-attorney practitioner James Stewart, who is admitted to practice before the Court of Appeals for Veterans Claims under that court's Rule 46(b)(1), and for work by supervising attorney Barton Stichman.¹ Mr. Wilson requested fees for Mr. Stewart's work at an hourly rate of $120; the EAJA application included affidavits indicating that was the prevailing market rate for litigation work done by a senior litigation paralegal with Mr. Stewart's knowledge and experience. Veterans in eight previous cases before the Court of Appeals for Veterans Claims had sought, and been awarded, $120 per hour for Mr. Stewart's work. The Secretary of Veterans Affairs ("Secretary"), the respondent in these claims cases, did not contest the EAJA applications in any of those eight cases. See Appellant's Br. at 10.

The Secretary responded to Mr. Wilson's application by acknowledging that Mr. Wilson satisfied the requirements for an EAJA award, but contested the $120 hourly rate requested for Mr. Stewart's work. The Secretary asserted that the appropriate hourly rate was $90, the market rate for work performed by paralegals and law clerks according to the scale the Department of Justice uses to calculate fees for cases in Washington, DC.

On December 6, 2002, sections 402 and 403 of the Veterans Benefits Act of 2002 became law. On December 12, 2002, six days after enactment of the VBA, a panel of the Court of Appeals for Veterans Claims granted Mr. Wilson's EAJA application. Wilson v. Principi, 16 Vet.App. 509 (2002). The court awarded fees for the work performed by non-attorney practitioner Mr. Stewart at the rate of $90 per hour. In explaining that $90 per hour was a reasonable rate, the majority analogized the work of a supervised non-attorney practitioner to that of a paralegal or law student supervised by an attorney, and refused to consider Mr. Stewart's extensive experience and expertise. Id. at 514-15. In dissent, Chief Judge Kramer stated that the appellant had presented significant evidence to demonstrate that the prevailing market rate for services provided by a non-attorney practitioner with Mr. Stewart's experience exceeded $90 per hour. Id. at 516. In February 2003, the Court of Appeals for Veterans Claims denied Mr. Wilson's motion for reconsideration. Wilson v. Principi, 17 Vet.App. 19 (2003). Mr. Wilson timely filed a notice of appeal with this court in April 2003.

2.

While Mr. Wilson's EAJA application was wending its way through the system, the Court of Appeals for Veterans Claims had stayed proceedings in another EAJA application case in which the veteran, Mr. Abbey, had also requested fees for Mr. Stewart's work at the rate of $120 per hour. After issuing its initial decision in Mr. Wilson's case in December 2002, the court lifted the stay in the Abbey case and ordered the parties to submit briefing explaining why the prevailing market rate for Mr. Stewart's services should not be $90 per hour. After the parties filed their briefs, the court in May 2003 requested additional briefing on the effect of section 403 of the Veterans Benefits Act of 2002,² which as noted had been enacted on December 6, 2002, on the court's authority to award EAJA fees for the work of Mr. Stewart in that case and the work of non-attorneys in general. Abbey v. Principi, 17 Vet.App. 75 (2003).

After receiving the parties' submissions, the Court of Appeals for Veterans Claims in September 2003 granted Mr. Abbey's EAJA application in full, including fees for work performed by Mr. Stewart at the rate of $120 per hour. Abbey v. Principi, 17 Vet.App. 282 (2003). The court simultaneously granted the EAJA application of another veteran who had used Mr. Stewart's services, again at the $120 hourly rate. Pentecost v. Principi, 17 Vet.App. 257 (2003). In both cases the court held that the enactment of section 403 of the VBA "requires a different outcome from that in Wilson." Abbey, 17 Vet.App. at 292; Pentecost, 17 Vet.App. at 260.

In Abbey and Pentecost the court interpreted section 403, which grants the Court of Appeals for Veterans Claims the "authority to award fees and expenses" of non-attorney practitioners "in an amount determined appropriate" by the court, as recognition of the unique role of non-attorney practitioners appearing before the court; the statute thus permits the court to consider a particular non-attorney practitioner's level of experience and expertise when determining a reasonable and appropriate fee. Abbey, 17 Vet.App. at 292; Pentecost, 17 Vet.App. at 260-61. Based on Mr. Stewart's experience representing over 200 appellants before the court after a twenty-five year career working for the Disabled American Veterans, the Court of Appeals for Veterans Claims readily approved fees for Mr. Stewart at the $120 hourly rate.

The Secretary did not appeal the Abbey and Pentecost decisions to this court. Relying on those decisions, the Court of Appeals for Veterans Claims has since awarded fees for Mr. Stewart's services at the $120 hourly rate in other cases, as indicated in a number of nonprecedential opinions issued during the last year. See Appellant's Reply Br. Addendum. In many of those cases, as in Abbey and Pentecost and also in the case before us, Mr. Stewart's work was performed prior to the December 2002 enactment of the VBA. More recently, the Court of Appeals for Veterans Claims awarded fees for work performed by Mr. Stewart after the enactment of the VBA at the rate of $126.73 per hour, an increase over the previously approved $120 rate based on the change in the Consumer Price Index during the relevant time period. Evington v. Principi, 18 Vet.App. 331 (2004).

Because of the happenstance of the timing, the Abbey and Pentecost decisions had no effect on the EAJA fees awarded to Mr. Wilson, since by the time those cases were decided in September 2003 the Court of Appeals for Veterans Claims had already entered judgment in his case, and he had filed a notice of appeal with this court. After the appeal was filed, this court in June 2003 stayed the briefing schedule and directed Mr. Wilson to show cause why his appeal should not be dismissed for lack of jurisdiction. In August 2003, after reviewing the parties' submissions regarding jurisdiction, a judge...