UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-1202

MARY L. SMITH, APPELLANT,

v\.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant\'s Application for Attorney Fees and Expenses

(Decided October 22, 2002)

David L. Bourgoin, of Honolulu, Hawaii, was on the pleadings for the
appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General
Counsel; Carolyn F. Washington, Deputy Assistant General Counsel; and
Peter M. Donawick, al1 of Washington, D.C., were on the pleading for the
appellee.

Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges.

FARLEY, Judge: Before the Court is the appellant\'s application for
attorney fees and expenses in the amount of \$15,775 pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and her
supplemental request for fees in the amount of \$1,875. The appellant\'s
application seeks fees for services provided, inter alia, before her
attorney filed an appearance in this matter and after the Court granted
his motion to withdraw as counsel. The Secretary argues that the
appellant is not eligible to collect fees pursuant to EAJA for services
performed by her attorney during the period that he was not the attorney
of record in this proceeding. The appellant\'s application has been
submitted to this panel for consideration of that limited issue.

I.

The appellant, appearing pro se, filed a Notice of Appeal from a June 4,
1998, Board of Veterans\' Appeals (Board or BVA) decision that had
denied her claim for service connection for a psychiatric disorder,
including schizophrenia and post-traumatic stress disorder (PTSD). On
December 4, 1998, attorney David L. Bourgoin entered an appearance and
filed with the Court a copy of his fee agreement with the appellant. On
October 20, 1999, Mr. Bourgoin filed a motion to withdraw as counsel,
wherein he explained that he had insufficient argument to pursue the
case properly. He further explained that he would assist the appellant
with her \"informal reply to the Court\" and expressed an intent to file
an application for EAJA fees for work helping the appellant with her
case. On November 16, 1999, the Court issued an order granting
counsel\'s motion td withdraw. In that order, the Court stated that
\"\[t\]he appellant is treated as self-represented unless and until a
qualified representative enters an appearance.\" The appellant
subsequently filed pro se an informal brief in which she argued that the
Board failed to consider her original discharge papers, which, she
contended, demonstrated that her military service aggravated a
preexisting psychiatric condition and caused her PTSD. The Secretary
filed a motion for summary affirmance. On June 6, 2000, the Court
vacated the Board's decision, finding that the Board\'s conclusion that
the appellant\'s service did not aggravate her condition beyond its
normal progression was not supported by an adequate statement of its
reasons or bases. Accordingly, the Court remanded the matter.

On August 18, 2000, attorney David Bourgoin entered a second appearance
in this matter and filed with the Court a copy of an attorney fee
agreement dated August 11, 2000. That fee agreement states that the
veteran \"recognizes that \[Bourgoin\] represented \[her\] earlier in
this case\" and that the veteran \"accepts and incorporates all prior
billable hours as part of this current contract to represent \[the
veteran\] before the Court.\" The agreement provides that the veteran
will pay as fees only the amount awarded by the government pursuant to
EAJA, if any. On September 5, 2000, the appellant filed an application
for attorney fees and expenses pursuant to EAJA, seeking fees for work
performed by attorney Bourgoin from July 16, 1998, through August 2000.

The Secretary filed a response in which he argues that the appellant is
not entitled to EAJA fees for any hours expended by her attorney during
the period he was not the attorney of record in this proceeding. The
Secretary contends more specifically that the appellant is not entitled
to fees for the period prior to December 4, 1998, (the date the first
fee agreement was filed with the Court) or from November 16, 1999, (the
date the Court granted the appellant\'s counsel\'s motion to withdraw)
to August 17, 2000, (the last date on which the appellant was
self-represented prior to her counsel\'s entering a second appearance in
order to file an application for EAJA fees). In reply, the appellant,
through counsel, argues that an attorney-client relationship existed
before her attorney filed the first fee agreement and after the attorney
resigned from the case. The appellant\'s counsel advises the Court that
he withdrew from this case based on advice from other attorneys that the
case could not be won. Counsel further advises that he continued to
represent the appellant by drafting an informal brief, and that,
although not lengthy, that informal brief had been revised several times
before the appellant filed the final draft. Counsel seeks fees for an
additional 15 hours spent defending the EAJA application.

II\.

This Court has jurisdiction to award attorney fees and expenses pursuant
to 28 U.S.C. § 2412(d)(2)(F). The appellant\'s submission meets the EAJA
application requirements because it was filed within the 30-day EAJA
application period and because it contains (1) a showing that the
applicant is a prevailing party; (2) a showing that her net worth does
not exceed \$2 million; (3) an allegation that the Secretary\'s position
was not substantially justified; and (4) an itemized statement of
attorney fees sought. See 28 U.S.C. § 2412(d)(l)(B); Bazalo v. West, 150
F.3d 1380, 1383-84 (Fed. Cir. 1998). The Secretary does not contest that
the appellant is a prevailing party or that the position of the
government was not substantially justified, and the Court agrees.

A. Time Billed for Work Done Prior to December 4, 1998

A formal fee agreement is not necessary for an attorney-client
relationship to commence. Rozmus v. West, 13 Vet.App. 386, 387 (2000)
(per curiam order). In Rozmus, the Court found that the evidence
proffered by the appellants showed that they had sought and received
advice and assistance from their attorneys in matters pertinent to their
appeals to the Court before they signed formal fee agreements. 13
Vet.App. at 387. As was the case in Rozmus, the Secretary here does not
contest the validity of the evidence provided to establish that an
attorney-client relationship existed before the appellant and attorney
Bourgoin signed their first formal fee agreement m this matter.
Therefore, because such attorney-client relationship existed, the Court
holds that the appellant is eligible to collect fees pursuant to EAJA
for attorney services provided prior to the signing of the first fee
agreement.

B. Time Billed for Work Done from November 16, 1999, to August 17, 2000

The appellant\'s EAJA application presents this Court with a question of
first impression: Is work performed by an attorney after he has formally
withdrawn from a case compensable under EAJA? We have found no other
case in which an EAJA applicant sought to collect attorney fees for work
performed by an attorney after withdrawing from a case. In any event, we
are guided by the basic principle that \"in litigation, an attorney\'s
actions are relevant only insofar as they are on behalf of a client
represented by that attorney.\" Similes v. West, 11 Vet.App. 115, 118
(1998). \"\[W\]ork done by an attorney is compensable under the EAJA
only if the attorney has been empowered by an agreement- which creates
an attorney-client relationship- to do work on behalf of the
appellant.\" Id. at 120.

In this matter, the appellant and her attorney entered into a formal fee
agreement, which provided that the attorney would receive a percentage
of any past-due benefits eventually awarded to the appellant as a result
of her appeal. Counsel informed the Court that he wished to withdraw
from representing the appellant because he did not believe the appeal
could be successful. On November 16, 1999, the Court issued an order
granting counsel\'s motion to withdraw and stating that the \"appellant
is treated as self-represented unless and until a qualified
representative enters an appearance.\" Although counsel informed the
Court that he would continue to \"assist\" the appellant, such
assistance cannot be considered work requiring the assistance of an
attorney because the appellant was, at that point, appearing pro se.
When the appellant\'s attorney filed his second notice of appearance in
order to file the instant EAJA application, he also filed a second fee
agreement, which specifically noted that counsel would neither represent
the appellant before the BVA nor collect any percentage of past- due
benefits if awarded. This second fee agreement further supports the
conclusion that counsel\'s withdrawal terminated his original agreement
with the appellant. Any work the attorney performed after he declared
the case unwinnable and withdrew as counsel of record cannot be
considered work that is typically performed by an attorney or that is
consistent with the zealous advocacy EAJA is intended to compensate. See
Chesser v. West, 11. Vet.App. 497, 504 (1998).

Pursuant to Rozmus, supra, an appellant generally may be eligible for
fees pursuant to EAJA for work performed prior to entering into a formal
fee agreement with his or her attorney and prior to that attorney\'s
filing a notice of appearance with the Court. However, once an attorney,
with the permission of the Court, withdraws from a case, any subsequent
services performed in the context of that case are not compensable under
EAJA unless they are performed after a new notice of appearance is filed
with the Court. Therefore, the appellant is not eligible to collect fees
pursuant to EAJA for services performed following her attorney\'s
withdrawal on November 16, 1999, until counsel filed his second
appearance on August 18, 2000.

III\.

The Court having determined that EAJA fees are to be awarded, the matter
of determining what constitutes a reasonable fee in this matter is
returned to Judge Farley for single-judge disposition. See 28 U.S.C. §
2412(d)(2)(A); Perry v. West, 11 Vet.App. 319, 327 (1998); Frankel v.
Derwinski, 1 Vet.App. 23 (1990).

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