Veteranclaims’s Blog

April 5, 2009

EAJA, pro se expenses that can be awarded

In this decision Judge Schoelen sets forth the basics of awarding EAJA expenses to a pro se veteran, when that veteran is the prevailing party.

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In order to be entitled to such an award, an appellant must file an application within the 30-day period set forth in 28 U.S.C. 2412(d)(1)(B), and the application must meet the statutory content requirements by containing (1) a showing that the appellant is a prevailing party; (2) a showing that he is a party eligible for an award because his net worth does not exceed $2,000,000; (3) an allegation that the Secretary’s position was not substantially justified; and (4) an itemized statement of the attorney fees and expenses sought. See 28 U.S.C. 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004).

The judgment became final 60 days thereafter on October 9, 2005, which triggered the beginning of the 30-day EAJA-application period. See 28 U.S.C. 2412(d)(1)(B); 38 U.S.C. 7291(a); Mariano v. Principi, 18 Vet.App. 217 (2004) (per curiam order).
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Because the Secretary does not dispute this issue, the Court need not further address it. See Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc) (noting that, once an appellant alleges no substantial justification, the burden shifts to the Secretary to prove that VA was substantially justified in administrative and litigation positions); see also Cook v. Brown, 6 Vet.App. 226, 237 (1994) (holding that the Court need not address whether the Secretary’s position was “substantially justified” when the Secretary does not assert such a defense, but expressly concedes the issue), aff’d, 68 F.3d 447 (Fed. Cir. 1995).

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See id. (holding that a pro se nonattorney litigant is eligible to
reimbursement of litigation expenses pursuant to 28 U.S.C. 2412(d)(1)(A)).

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Prevailing Party Status:

the Court now finds that the appellant is a prevailing party because he received a remand predicated upon administrative error. See Sumner v. Principi, 15 Vet.App. 256, 264-65 (2001) (en banc), aff’d sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed. Cir. 2003).

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Expenses under EAJA:
For expenses to be awarded under the EAJA, the expenses must be “‘reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried.'” March, 7 Vet.App. at 169 (quoting Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987)).

However, because postage is a reasonable and necessary expense ordinarily billed to a client, the Court will grant the application for expenses for postage in the amount of $108.54. See id.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-1499(E)

Jose G. Apollo, Sr., Appellant,
v.
R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

Before SCHOELEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: Pending before the Court is the pro se appellant’s October 12, 2005, application for an award of reasonable attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d). He originally sought fees for 300 hours of work, but he later amended his request to 421 hours, at the rate of $140 per hour, for a total of $58,940 in attorney fees, plus $2,933.54 in expenses. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will deny the application for attorney fees and grant the application for expenses in the reduced amount of $108.54.
On August 1, 2003, the appellant filed a timely Notice of Appeal in
this Court seeking review of an April 24, 2003, decision of the Board of Veterans’ Appeals (Board). On July 15, 2005, the Court issued a decision reversing in part and vacating in part the Board decision on appeal because the Board incorrectly determined that an April 1995 discontinuance of vocational rehabilitation benefits became final. Apollo v. Nicholson, 20 Vet.App. 139 (2005) (table), appeal dismissed, 159 F. App’x 1001 (Fed. Cir. 2005). The Court entered its judgment on August 10, 2005. On that same date, the Court received the appellant’s EAJA application. On September 8, 2005, the Court received from the Secretary a motion to dismiss the EAJA application. On October 7, 2005, the Court received from the appellant an amended application. Pursuant to the Court’s procedures when EAJA applications are filed prematurely and not returned to the appellant, the appellant’s application, the Secretary’s motion, and the appellant’s amended application were held by the Clerk of the Court and were not filed until October 12, 2005, the date on which the Court issued its mandate. See March v. Brown, 7 Vet.App. 163, 166 (1994).
This Court has jurisdiction to award attorney fees and expenses pursuant to 28 U.S.C. 2412(d)(2)(F) In order to be entitled to such an award, an appellant must file an application within the 30-day period set forth in 28 U.S.C. 2412(d)(1)(B), and the application must meet the statutory content requirements by containing (1) a showing that the appellant is a prevailing party; (2) a showing that he is a party eligible for an award because his net worth does not exceed $2,000,000; (3) an allegation that the Secretary’s position was not substantially justified; and (4) an itemized statement of the attorney fees and expenses sought. See 28 U.S.C. 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004).
In his motion to dismiss, the Secretary asserts that the appellant’s
application should be dismissed for lack of jurisdiction because it does not contain a showing that the appellant is a prevailing party, because the appellant does not allege that the Secretary’s position was not substantially justified, and, if the Court were to deny the motion to dismiss, that the Court should deny the application for attorney fees because the appellant is a nonattorney pro se litigant. Although the Secretary acknowledges the decision of the U.S. Supreme Court in Scarborough, holding that an amendment to an application to include an allegation that the Secretary’s position was not substantially justified relates back to the original application, the Secretary argues that Scarborough does not apply to the assertion that the appellant is a prevailing party. The Secretary is correct that the appellant’s original application did not contain an express statement that the appellant was a prevailing party and that the Secretary’s position was not substantially justified. However, both allegations appear in the appellant’s amended application.
The Secretary’s argument fails because the appellant timely corrected the alleged defects in the application. As stated above, the Court issued its judgment on August 10, 2005. The judgment became final 60 days thereafter on October 9, 2005, which triggered the beginning of the 30-day EAJA-application period. See 28 U.S.C. 2412(d)(1)(B); 38 U.S.C. 7291(a); Mariano v. Principi, 18 Vet.App. 217 (2004) (per curiam order). By the first date of the 30-day EAJA-application period, the Court had already received the appellant’s amended EAJA application (received by the Court on October 7, 2005, and filed on October 12, 2005) that corrected the deficiencies alleged in the Secretary’s motion to dismiss. Because the amended EAJA application was filed within the 30-day EAJA-application period and satisfies the application-content requirements of 28 U.S.C. 2412(d)(1)(A), (1)(B), and (2)(B), the Court will deny the Secretary’s motion to dismiss the EAJA application.[ 1 Because the appellant’s timely filed amended application expressly satisfies the EAJA application-content requirements, the Court need not determine whether a liberal reading of the original application would satisfy the application-content requirements. See March, 7 Vet.App. at 169 (applying a liberal reading to a pro se EAJA application to determine that, although not in so many words, the appellant alleged that the position of the Secretary was not substantially justified).]1
Other than his motion to dismiss, the Secretary failed to file a response to the appellant’s original and amended application. In the motion to dismiss, the Secretary does not dispute that the appellant was a prevailing party and the Court now finds that the appellant is a prevailing party because he received a remand predicated upon administrative error. See Sumner v. Principi, 15 Vet.App. 256, 264-65 (2001) (en banc), aff’d sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed. Cir. 2003). In the motion to dismiss, the Secretary does not argue that his position was substantially justified. Because the Secretary does not dispute this issue, the Court need not further address it. See Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc) (noting that, once an appellant alleges no substantial justification, the burden shifts to the Secretary to prove that VA was substantially justified in administrative and litigation positions); see also Cook v. Brown, 6 Vet.App. 226, 237 (1994) (holding that the Court need not address whether the Secretary’s position was “substantially justified” when the Secretary does not assert such a defense, but expressly concedes the issue), aff’d, 68 F.3d 447 (Fed. Cir. 1995).
In the motion to dismiss, the Secretary asserts that, although the appellant may be entitled to reasonable costs incurred in the litigation, he is ineligible to receive attorney fees because he is a pro se nonattorney litigant. Although the appellant submitted evidence that he is enrolled in a paralegal education program, he has presented no evidence that he is an attorney. Additionally, the appellant is not admitted to practice before the Court as a nonattorney practitioner. As a pro se nonattorney litigant, the appellant is ineligible to receive attorney fees under the EAJA, and to the extent that he seeks attorney fees, his application will be denied. See March, 7 Vet.App. at 168.
The Secretary correctly notes that the appellant may be entitled to the award of reasonable expenses incurred in the instant litigation. See id. (holding that a pro se nonattorney litigant is eligible to reimbursement of litigation expenses pursuant to 28 U.S.C. 2412(d)(1)(A)). The appellant seeks reimbursement for the following itemized expenses: $1,700 for the upgrading of computer systems; $600 for computer software; $525 for computer training and operational training; and $108.54 for postage.
For expenses to be awarded under the EAJA, the expenses must be “‘reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried.'” March, 7 Vet.App. at 169 (quoting Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987)). Because the claimed expenses for computer upgrades, software, and training are not those customarily billed to a client, the Court will deny the application for those expenses. See March, 7 Vet.App. at 170. However, because postage is a reasonable and necessary expense ordinarily billed to a client, the Court will grant the application for expenses for postage in the amount of $108.54. See id.
Accordingly, the appellant’s application for attorney fees is DENIED and the application for expenses is GRANTED in the amount of $108.54.
DATED: January 16, 2007

Copies to:

Jose G. Apollo, Sr.

VA General Counsel (027)

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