Guzman-Diaz v. Brown

ORDER

PER CURIAM.

On April 17, 1996, the Court granted the parties’ joint motion to remand this appeal to the Board of Veterans’ Appeals. Pursuant to Rule 41(b) of the Court’s Rules of Practice and Procedure, the Court’s order constituted the mandate of the Court.

On May 10, 1996, the appellant filed an application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C § 2412(d). Included as part of the application was the following itemized statement:

4. Amount Sought. The legal fees sought on this application cover legal advice and services rendered since February 13, 1996, when I was first contacted by Appellant, to the date hereof including preparation and review of appeal documents, phone conferences with Appellant, Counsel for Appellee and Clerk of the Court, and preparation of EAJA documentation. Time spent equals 15.1 hours. The present statutory hourly rate equals $125.00. Thus, the EAJA fee requested is $1,887.50.

In a motion filed on May 29,1996, the Secretary requested a stay of further proceedings pending the Court’s resolution of other cases pertaining to the elements that must be part of an application for EAJA fees. In his opposition to the Secretary’s motion (Response), filed on June 10,1996, the appellant argued that the issues presented in the other cases had no bearing upon his application. In addition, the appellant’s counsel submitted with the Response “my contemporaneous time sheet which supports the itemization in paragraph 4 of my initial application.” Appellant’s Response at 2. The Court granted the Secretary’s motion, and this matter was stayed until November 6,1996.

On November 20, 1996, the Secretary filed a motion to dismiss the appellant’s EAJA application. In his motion, the Secretary argued that the application was jurisdiction-ally defective because it did not include an itemized statement of the fees sought. On December 3, 1996, the appellant filed a motion for a conference pursuant to Rule 33. In a single-judge order dated December 13, 1996, this Court held the appellant’s motion for a conference in abeyance and directed the appellant to show cause why the application for attorney fees and expenses should not be dismissed. The appellant filed a response to the Court’s order on December 26, 1996. Thereafter, the matter was referred to this panel for disposition.

In Bazalo v. Brown, the Court held that an appellant must submit an EAJA application that meets each of the jurisdictional requirements set forth in 28 U.S.C. § 2412(d)(1)(B) within the statutory 30-day filing period. 9 Vet.App. 304, 306 (1996) (en banc). The requirements for a complete, nondefective EAJA application 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 was not substantially justified; and (4) “an itemized statement ... stating the actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C. *235§ 2412(d)(1)(B); see Bazalo, 9 Vet.App. at 308. Unless all of the jurisdictional requirements are met within the 30-day filing period, the Court cannot consider an EAJA application and award EAJA fees. Id. at 306. After the expiration of the 30-day filing period, an appellant may not complete his defective application. Id. at 306, 310. However, “timely pleadings addressing each of the requirements of EAJA may be amended or supplemented as deemed necessary by the Court or by the parties.” Id. at 310.

The appellant’s initial itemized statement of the fees sought in his EAJA application stated “the actual time expended” and “the rate at which fees and other expenses were computed,” and grouped all of the services rendered by the appellant’s counsel into broad categories. The application provided the categories without indicating what part of the 15.1 hours was expended for each separate task or identifying the work done in each time increment. However, the fact that only 15.1 hours were claimed, and that the rate and categories were given, constitutes a contextual reference of sufficient precision to satisfy the jurisdictional requirement of Bazalo. Unlike the Secretary and our dissenting colleague, we simply do not believe that the itemization initially submitted by the appellant is so lacking in detail that the application must be dismissed as “seriously deficient” under Bazalo. To the extent that additional information may be necessary or helpful for the Court to be able to reach a determination on the reasonableness of the fees once it has jurisdiction to consider an application, it can be provided, as here, by amendment or supplementation. Ibid. The Court concludes, therefore, that the appellant’s application for attorney fees and expenses meets the jurisdictional requirements of the EAJA, that it was timely filed, and that the Court has jurisdiction to consider the application. Moreover, the appellant’s Response was a permissible supplementation of his timely EAJA application.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion to dismiss the appellant’s EAJA application is DENIED. It is further

ORDERED that this appeal is returned to the single judge for disposition of all remaining issues, including the appellant’s motion for a Rule 33 conference.