Avgoustis v. Shinseki

United States Court of Appeals
for the Federal Circuit
__________________________

STANLEY J. AVGOUSTIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
__________________________

2010-7092
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1524, Judge Alan G. Lance
Sr.
__________________________

Decided: April 6, 2011
___________________________

SEAN A. RAVIN, of Washington, DC, argued for claim-
ant-appellant.

MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and FRANKLIN E. WHITE, JR., Assistant Director.
__________________________
AVGOUSTIS v. DVA 2

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 (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 descrip-
tions 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 dis-
covered by Avgoustis.
Subsequently, Avgoustis submitted an EAJA applica-
tion to the Veterans Court for attorneys’ fees and ex-
penses, 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
3 AVGOUSTIS v. DVA

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. Avgous-
tis’ 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 attor-
ney would violate attorney-client privilege.
The Veterans Court agreed with the VA that the dis-
puted 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 con-
tained sufficient additional detail without disclos-
ing privileged information. For example, the
entries do not distinguish between communica-
tions 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 cli-
ent contact can easily be described in general
terms without disclosing specific details that may
be protected by privilege.
AVGOUSTIS v. DVA 4

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 deci-
sions of the Veterans Court is limited to a “challenge to
the validity of any statute or regulation or any interpreta-
tion 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 attor-
ney-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 legis-
lated 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 (1991). 1 In particular, the
1 See also Sierra Pac. Power Co. v. Fed. Power
Comm’n, 223 F.2d 605, 607 (D.C. Cir. 1955) (“[A] statute
will not be construed as taking away a common law right .
. . unless that result is imperatively required; that is to
say, unless it be found that the pre-existing right is so
repugnant to the statute that the survival of such right
would in effect deprive the subsequent statute of its
efficacy . . . .”); Norman J. Singer & J.D. Shambie Singer,
5 AVGOUSTIS v. DVA

Supreme Court has held that a statute abrogates common
law privileges only if “the language declaring the legisla-
tive will [is] so clear as to prevent doubt as to its intent
and limit.” Bassett v. United States, 137 U.S. 496, 505–
506 (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 abro-
gated spousal privilege when husband was charged with
polygamy). More recently, in Upjohn Co. v. United States,
449 U.S. 383, 398 (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 “sug-
gest[ ] 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. 1999) (both cases hold that a
statute which mandates disclosure of a wiretap applica-
tion 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

3 Sutherland Statutory Construction § 61:1 (7th ed.) (“A
statute may take away a common-law right, but courts
presume the legislature has no such purpose,” and “[i]f a
common-law right is to be taken away, it must be noted
clearly by the legislature . . . [which] must speak directly
to the question addressed by the common law.”).
AVGOUSTIS v. DVA 6

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 ex-
penses 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 re-
ceive 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 re-
quired in “an itemized statement,” and it certainly does
not speak directly to the attorney-client privilege. More-
over, 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 (Sept. 19, 1980); H.R. Rep. 96-1418
(Sept. 26, 1980); H.R. Rep. 96-1434 (Sept. 30, 1980) (Conf.
Rep.).
Given the presumption against abrogating common
law privileges absent clear legislative intent, we cannot
7 AVGOUSTIS v. DVA

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. In fact, we cannot see any indication that
Congress intended to abrogate the attorney-client privi-
lege, 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 (1983),
the Supreme Court emphasized that attorneys’ fee appli-
cants 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 expendi-
tures.” Id. at 437 n.12. Under numerous fee-shifting
statutes, courts of appeals have consistently required that
attorneys’ fee applicants provide the general subject
matter of their billing entries. 2 Although this court has

2 See, e.g., Role Models Am., Inc. v. Brownlee, 353
F.3d 962, 971 (D.C. Cir. 2004) (collecting cases in which
the District of Columbia Circuit found inadequate detail
in fee applications when the general subject matter of
billing entries was not disclosed and finding entries
inadequate that were merely “for time spent in telecon-
ferences or meetings [when] the purposes [of those entries
were] not provided”); Fischer v. SJB-P.D., Inc, 214 F.3d
1115, 1121 (9th Cir. 2000) (involving 42 U.S.C. § 12205
under the Americans with Disabilities Act and requiring
applicant to “identify[ ] the general subject matter of his
time expenditures”); H.J. Inc. v. Flygt Corp., 925 F.2d
257, 260 (8th Cir. 1991) (involving antitrust fee-shifting
AVGOUSTIS v. DVA 8

not directly addressed the level of specificity required in
subject matter disclosures under EAJA, we have stated
that time records will satisfy EAJA’s itemized statement
requirement when they provide “contemporaneous records
of exact time spent on the case, by whom, their status and
usual billing rates,” Naporano Iron & Metal Co. v. United
States, 825 F.2d 403, 404–05 (Fed. Cir. 1987), as well as
“an identification of the work done in each time incre-
ment,” TGS Int’l, Inc. v. United States, 983 F.2d 229, 230
n.1 (Fed. Cir. 1993).
The Veterans Court in an earlier case held that under
the itemized statement requirement of EAJA, entries
such as “writing to client,” “reviewing Court’s notice of
docketing,” “reviewing litigation file,” “[t]elephone conver-
sations with VA counsel,” and “faxing materials to VA
counsel” were “too vague and lacking in detail to permit
effective review of the application” because they do “not
adequately identif[y] the purpose of these activities.”
McDonald v. Nicholson, 21 Vet. App. 257, 264 (2007). The
Veterans Court followed McDonald here. The Veterans
Court’s specificity requirements as articulated in McDon-
ald and this case are in accordance with these cases from
the Supreme Court, our circuit, and other circuits. The
Veterans Court explained that “McDonald contains no
requirement that attorneys disclose the exact content of
communications between themselves and their clients.”
Avgoustis, slip. op. at 4.
We also agree that such requirements do not in most
cases invade the attorney-client privilege when applied to
client communications. Unlike the work-product doctrine,
see Fed. R. Civ. P. 26(b)(3), which protects attorney mate-
rials prepared in anticipation of litigation, the attorney-

statute at 15 U.S.C. § 15 and reducing recovery for failure
to adequately describe purpose of billing entries).
9 AVGOUSTIS v. DVA

client privilege protects only “confidential attorney-client
communications.” Fed R. Evid. 502. Thus, we are con-
cerned here with disclosures that would reveal the con-
tent of a communication between an attorney and client.
Given that Avgoustis publicly filed a claim for com-
pensation with the VA, the fact that he was communicat-
ing with an attorney about his compensation claim is not
confidential and hence not in and of itself privileged. By
definition, claims for attorneys’ fees must be limited to
this representation, and disclosures cannot implicate
counsel’s advice on other matters. At oral argument,
Avgoustis’ counsel admitted that the “privilege is not
implicated if [one is] simply writing an itemized state-
ment [stating] ‘updating [on] case,’ ‘answering questions,’
[or] ‘responding to inquiry.’” Oral Arg. at 7:11–8:00,
available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
10-7092.MP3.
So far as we have been able to determine, no court of
appeals has held that disclosure of the general subject
matter of a billing statement under fee-shifting statutes
violates attorney-client privilege. The attorney-client
privilege primarily protects “those attorney to client
communications which would have a tendency to reveal
the confidences of the client.” Kenneth S. Broun, McCor-
mick on Evidence § 89 (6th ed. 2006); see also Restate-
ment (Third) of Law Governing Lawyers § 69(d) (2000)
(“The attorney-client privilege protects only the content of
the communication between privileged persons”). “Courts
have consistently held that the general subject matters of
clients’ representations are not privileged.” United States
v. Legal Servs. for N.Y.C., 249 F.3d 1077, 1081 (D.C. Cir.
2001); see also In re Grand Jury Subpoena, 204 F.3d 516,
520 (4th Cir. 2000) (“[T]he identity of the client, the
amount of the fee, the identification of payment by case
AVGOUSTIS v. DVA 10

file name, and the general purpose of the work performed
are usually not protected from disclosure by the attorney-
client privilege.”). Courts have also frequently required
disclosures of the general subject matter of communica-
tions without any indication that they would implicate the
attorney-client privilege or that they raise any conflict
with the privilege. The Eighth Circuit upheld the district
court’s reduction of hours for “vague” entries, such as
“met w[ith] client.” H.J. Inc., 925 F.2d at 260. Also, the
Sixth Circuit affirmed a district court’s finding that
entries merely noting that the attorney had numerous
meetings with class representatives were inadequate.
Reed v. Rhodes, 934 F. Supp. 1492, 1505, 1507 (N.D. Ohio
1996), aff’d 179 F.3d 453, 472 (6th Cir. 1999). These
entries are indistinguishable from the items in this case
stating “review client correspondence” and “draft client
correspondence.”
To the extent that the issue has been directly ad-
dressed (which is seldom), the courts have concluded that
requiring such disclosures does not violate the attorney-
client privilege absent unusual circumstances. In Clarke
v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129–30 (9th
Cir. 1992), the Ninth Circuit explained that “the general
purpose of the work performed [by attorneys is] usually
not protected from disclosure by the attorney-client privi-
lege,” but statements and time records which might
reveal “the motive of the client in seeking representation”
or the content of a communication between the attorney
and client would “fall within the privilege.” The Fourth
Circuit has similarly held that billing records are not
privileged unless they “reveal something about the advice
sought or given.” Chaudhry v. Gallerizzo, 174 F.3d 394,
402–03 (4th Cir. 1999). In Chaudhry, the court found
that requiring disclosure of notations about specific
statutes researched by the attorney would violate the
11 AVGOUSTIS v. DVA

attorney-client privilege because it would reveal the
content of advice sought and given. Id. None of the
sample disclosures suggested by the Veterans Court here,
such as “seeking the client’s input as to the issues raised”
or “seeking approval for actions that require the consent
of the client,” would come anywhere close to revealing the
nature of the advice sought or given. At oral argument
here we pressed Avgoustis’ counsel to describe how gen-
eral descriptions of the kind required by the Veterans
Court, such as “communications updating the client as to
the case’s status” and “seeking the client’s input as to the
issues raised,” would violate the attorney-client privilege.
Counsel was unable to do so.
It is noteworthy that in his reply to the VA’s initial
contention that the billing statements were inadequate,
Avgoustis himself provided the purpose and general
subject matter of 2.6 of the 5.2 disputed hours. For
example, he explained that he billed 0.8 hours to “com-
municate with the client when initially retained,” 0.8
hours to “communicate with [the] client regarding the
significance of [the summary of issues for a mediated
conference with the VA],” and one hour to “communicate
with [the] client regarding the significance of [negotia-
tions for the joint motion for remand and the attorneys’
fee application].” See J.A. 39–40. He evidently did not
believe these disclosures violated attorney-client privi-
lege.
It is also noteworthy that in certain circumstances,
federal courts have required parties under Federal Rule of
Civil Procedure 26(b)(5)(A)(ii) to make similar disclosures
about the general subject matter of potentially privileged
documents in privilege logs. The rule requires a party
withholding discovery documents under a claim of privi-
lege to “describe the nature of the documents, communica-
tions, or tangible things not produced or disclosed––and
AVGOUSTIS v. DVA 12

do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to
assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). The
advisory committee notes further explain that “details
concerning . . . general subject matter . . . may be appro-
priate.” The Second Circuit, for example, found privilege
logs were insufficiently detailed when they merely stated
“Fax: Whistleblower article” or “Summary of Enclosures”
and justified the privilege by characterizing the docu-
ments as “attorney-client communication[s]” without
explanation. United States v. Constr. Prods. Research,
Inc., 73 F.3d 464, 473 (2d Cir. 1996). It would be strange
if this requirement to disclose general subject matter in a
privilege log invalidated the attorney-client privilege
when the purpose of the rule is to determine whether the
document is privileged “without revealing information
itself privileged or protected.” Fed. R. Civ. P.
26(b)(5)(A)(ii).
As recognized by the Ninth and Fourth Circuits, re-
quiring detailed disclosure of subject matter could con-
ceivably implicate the attorney-client privilege in unusual
circumstances––e.g., if EAJA required an attorney to
state that his client had consulted him as to whether the
client had committed a crime. Contrary to the govern-
ment’s contention, if such circumstances existed, the
privilege would be implicated even if the disclosures occur
only after the end of the representation. Avgoustis claims
that the Veterans Court might in fact require further
disclosures that might impinge on the privilege. This is
merely a hypothetical. The Veterans Court has not
required such disclosures. The government explicitly
stated at oral argument that it would be “satisfied with
the level of detail provided” in the Veterans Court opin-
ion. Oral Arg. at 14:39–50. We are confident that the
Veterans Court will be sensitive to protect the attorney-
13 AVGOUSTIS v. DVA

client privilege in future cases if a problem arises. We see
no problem with the disclosures required here, nor should
clients fear that the attorney-client privilege would be
waived by these required disclosures.
III
For the foregoing reasons, we conclude that EAJA
does not abrogate the attorney-client privilege, and that
the privilege is not invaded in this case.
AFFIRMED
COSTS
No costs.