A recent Law 360 story by Hailey Konnath, “Fed. Circ. Weights in on EAJA Fees in Partial Wins,” reports that the Federal Circuit issued a precedential decision clarifying that the government is still obligated to cover attorney fees stemming from initial case reviews for litigants who prevail against it in civil actions, even if the litigants did not succeed on all their claims. 

According to the underlying case, U.S. Army veteran Robert L. Smith partially won an appeal of a U.S. Department of Veterans Affairs decision on his benefits.  He then asked that his attorney fees for the appeal be covered under the Equal Access to Justice Act, which requires the government to pay attorney fees for those who prevail against it in court.

The Court of Appeals for Veterans Claims held that he should indeed receive an award, but reduced the portion of his award that stemmed from the time his attorney spent on an initial review of the case.  The court held that the reduction was needed because Smith only prevailed on one of the issues in his appeal.

But the Federal Circuit said that the veterans court had undervalued the importance of the initial review of Smith's case, holding that the review was "necessary before appellate counsel could determine what bases, if any, existed for an appeal."  The three-judge panel reversed in part and affirmed in part the veterans court's decision and remanded the case for an award consistent with its opinion.

The Veterans Court should have determined whether the time Smith's attorney spent reviewing the record could be reasonably understood as preparation for bringing the successful claim, the Federal Circuit said.  But instead, the court "assumed that, because such time must have been spent on both successful and unsuccessful claims, it therefore required a reduction in those hours," the panel said.

"This was an error," the panel said.  Specifically, the Veterans Court misinterpreted 28 U.S. Code § 2412, which governs the government's costs and fee obligations in civil actions brought against it, according to the decision.  "There is no statutory requirement that time reasonably expended in initial record review must be reduced, merely because there were eventually both successful and unsuccessful claims pursued in the case," the panel said.  "To the contrary, the law requires that Mr. Smith's counsel be compensated for time that was necessarily expended on the initial review of the record, regardless of whether some of the claims that came from that review ultimately were found not to prevail, if that time was necessary for a successful appeal."

The Federal Circuit noted that if Smith had only brought his successful claim before the court, his attorney would have been fully compensated for the 18 hours she spent on her initial review of the 9,389-page record.  "There may be instances in which the time spent on reviewing the record is unreasonable or could be apportioned.  This is not one of them," the panel added.

Harold Hoffman, who works for Veterans Legal Advocacy Group and represented Smith in the action, told Law360 that the non-profit organization relies on Equal Access to Justice Act fees to help disabled veterans.  "We are happy that the Federal Circuit recognized the importance of good representation for veterans forced to appeal bad VA decisions to the federal courts," Hoffman said.

Rachel Bayefsky, an attorney with Akin Gump Strauss Hauer & Feld LLP, added that the Federal Circuit opinion "laid down important principles for the Veterans Court to follow in this case and in the future."  "The Federal Circuit correctly recognized that the standards of proper appellate advocacy apply equally to veterans, and that attorney's fees should be awarded accordingly," she said.

Citing his partial victory, Smith requested a fees award of about $10,200 for 50 hours of attorney work, per the order.  The hours total included the 18 hours his attorney spent reading and taking notes on the administrative record for the case.

In November 2019, the Veterans Court granted Smith's request but only awarded him fees for six of those 18 hours spent reviewing the record.  At the time, the court reasoned that "[b]ecause counsel's review of the [record before the agency] in this case 'presumably pertained to both the prevailing and nonprevailing [sic] issues,' the court concludes that reductions are warranted to account for time spent reviewing and taking notes regarding evidence related to the six unsuccessful claims."