United States Court of Appeals for the Federal Circuit 

03-7105 

ALBERT L. WILSON, 

Claimant-Appellant, 

v. 

ANTHONY J. PRINCIPI, 

Secretary of Veterans Affairs, 

Respondent-Appellee. 

Barton F. Stichman, National Veterans Legal Services Program, of Washington, 

DC, argued for claimant-appellant. With him on the brief were Nancy L. Foti and Louis J. 

George. 

Edward P. Sullivan, Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, argued for respondent-appellee. On 

the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, 

and Kenneth D. Woodrow, Trial Attorney. Of counsel on the brief was Martin J. Sendek, 

Office of the General Counsel, United States Department of Veterans Affairs, of 

Washington, DC. Of counsel were Franklin E. White, Jr., Assistant Director, and Kyle E. 

Chadwick, Attorney, Civil Division. Also of counsel was Michael J. Timinski, Department 

of Veterans Affairs. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Donald L. Ivers 
United States Court of Appeals for the Federal Circuit 

03-7105 

ALBERT L. WILSON, 

 Claimant-Appellant, 

v. 

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

__________________________ 

DECIDED: December 3, 2004 

__________________________ 

Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and CLEVENGER, 

Circuit Judge. 

PLAGER, Senior Circuit Judge. 

This case requires us to examine two sections of the Veterans Benefits Act of 

2002 (“VBA”), and to determine whether, under section 402 of the Act, we have 

jurisdiction to decide the case before us, and whether, under section 403, the Court of 

Appeals for Veterans Claims properly decided the case before it. 

The veteran in this case, Albert L. Wilson, seeks review of the decision of the 

Court of Appeals for Veterans Claims on his application for fees and expenses pursuant 

to the Equal Access to Justice Act (“EAJA”). The Court of Appeals for Veterans Claims 

granted his application, but awarded less than the amount he requested for the nonattorney practitioner who had worked on his case. On appeal to this court, Mr. Wilson 
03-7105 2

argues that the Court of Appeals for Veterans Claims wrongly failed to consider the 

effect of section 403 of the VBA on such awards. 

The Government contends that, because Mr. Wilson did not argue below that 

section 403 had any effect on his case, this court lacks jurisdiction to consider the 

matter, citing section 402 of the VBA. The Government further argues that, even if we 

have jurisdiction over the appeal, prudential considerations suggest that we should 

decline to address the section 403 issue. 

We conclude that we have jurisdiction under section 402 to decide whether the 

Court of Appeals for Veterans Claims wrongly failed to apply the correct law as 

announced in section 403. We further conclude that in the exercise of our discretion we 

should entertain Mr. Wilson’s appeal even though he did not raise the section 403 issue 

below. Because the Court of Appeals for Veterans Claims erred in its understanding of 

the applicable law, we vacate the judgment of the Court and remand for reconsideration 

of Mr. Wilson’s EAJA award. 

BACKGROUND 

1. 

The dates on which various events occurred are key to understanding the issue 

in the case. In April 2001 Mr. Wilson filed a claim with the Board of Veterans’ Appeals 

(“Board”) seeking an increase in his service-connected disability rating. The Board 

denied the claim, and Mr. Wilson appealed to the Court of Appeals for Veterans Claims. 

In September 2001, in response to a joint motion filed by the parties pointing out 
03-7105 3

 

administrative errors made by the Board, the Court of Appeals for Veterans Claims 

vacated the Board’s decision and remanded for further proceedings. 

Shortly thereafter Mr. Wilson filed with the Court of Appeals for Veterans Claims 

an application for an award of reasonable fees and expenses under the Equal Access to 

Justice Act, 28 U.S.C. § 2412(d). He sought compensation for work by non-attorney 

practitioner James Stewart, who is admitted to practice before the Court of Appeals for 

Veterans Claims under that court’s Rule 46(b)(1), and for work by supervising attorney 

Barton Stichman.1

 Mr. Wilson requested fees for Mr. Stewart’s work at an hourly rate of 

1

 Non-attorneys may practice before the Court of Appeals for Veterans 

Claims if they meet the requirements of Rule 46(b): 

(b) Admission of Nonattorney Practitioners to Practice. A nonattorney of 

good moral character and repute who is – 

(1) under the direct supervision (including presence at any oral 

argument) of an attorney admitted to the bar of the Court, or 

(2) employed by an organization which is chartered by Congress, is 

recognized by the Secretary of Veterans Affairs for claims representation, 

and provides a statement signed by the organization's chief executive 

officer certifying to the employee's – 

(A) understanding of the procedures and jurisdiction of the 

Court and of the nature, scope, and standards of its judicial review; 

and 

(B) proficiency to represent appellants before the Court 

may be admitted to practice before the Court upon filing with the Clerk a 

completed application accompanied by the applicable fee (payable by 

check or money order). In making the statement under this paragraph, the 

chief executive officer should be aware that knowledge of and 

competence in veterans law and the administrative claims process does 

not in and of itself connote competence in appellate practice and 

procedure. 

Ct. App. Vet. Cl. R. 46(b). Mr. Stewart is admitted under subsection (b)(1) and was 

supervised by Mr. Stichman in this case. 
03-7105 4

$120; the EAJA application included affidavits indicating that was the prevailing market 

rate for litigation work done by a senior litigation paralegal with Mr. Stewart’s knowledge 

and experience. Veterans in eight previous cases before the Court of Appeals for 

Veterans Claims had sought, and been awarded, $120 per hour for Mr. Stewart’s work. 

The Secretary of Veterans Affairs (“Secretary”), the respondent in these claims cases, 

did not contest the EAJA applications in any of those eight cases. See Appellant’s Br. 

at 10. 

The Secretary responded to Mr. Wilson’s application by acknowledging that Mr. 

Wilson satisfied the requirements for an EAJA award, but contested the $120 hourly 

rate requested for Mr. Stewart’s work. The Secretary asserted that the appropriate 

hourly rate was $90, the market rate for work performed by paralegals and law clerks 

according to the scale the Department of Justice uses to calculate fees for cases in 

Washington, DC. 

On December 6, 2002, sections 402 and 403 of the Veterans Benefits Act of 

2002 became law. On December 12, 2002, six days after enactment of the VBA, a 

panel of the Court of Appeals for Veterans Claims granted Mr. Wilson’s EAJA 

application. Wilson v. Principi, 16 Vet. App. 509 (2002). The court awarded fees for the 

work performed by non-attorney practitioner Mr. Stewart at the rate of $90 per hour. In 

explaining that $90 per hour was a reasonable rate, the majority analogized the work of 

a supervised non-attorney practitioner to that of a paralegal or law student supervised 

by an attorney, and refused to consider Mr. Stewart’s extensive experience and 

expertise. Id. at 514-15. In dissent, Chief Judge Kramer stated that the appellant had 

presented significant evidence to demonstrate that the prevailing market rate for 
03-7105 5

services provided by a non-attorney practitioner with Mr. Stewart’s experience 

exceeded $90 per hour. Id. at 516. In February 2003, the Court of Appeals for 

Veterans Claims denied Mr. Wilson’s motion for reconsideration. Wilson v. Principi, 17 

Vet. App. 19 (2003). Mr. Wilson timely filed a notice of appeal with this court in April 

2003. 

2. 

While Mr. Wilson’s EAJA application was wending its way through the system, 

the Court of Appeals for Veterans Claims had stayed proceedings in another EAJA 

application case in which the veteran, Mr. Abbey, had also requested fees for Mr. 

Stewart’s work at the rate of $120 per hour. After issuing its initial decision in Mr. 

Wilson’s case in December 2002, the court lifted the stay in the Abbey case and 

ordered the parties to submit briefing explaining why the prevailing market rate for Mr. 

Stewart’s services should not be $90 per hour. After the parties filed their briefs, the 

court in May 2003 requested additional briefing on the effect of section 403 of the 

Veterans Benefits Act of 2002,2

 which as noted had been enacted on December 6, 

2002, on the court’s authority to award EAJA fees for the work of Mr. Stewart in that 

 2

 Section 403 of the VBA provides: 

The authority of the United States Court of Appeals for Veterans 

Claims to award reasonable fees and expenses of attorneys under section 

2412(d) of title 28, United States Code, shall include authority to award 

fees and expenses, in an amount determined appropriate by the United 

States Court of Appeals for Veterans Claims, of individuals admitted to 

practice before the Court as non-attorney practitioners under subsection 

(b) or (c) of Rule 46 of the Rules of Practice and Procedure of the United 

States Court of Appeals for Veterans Claims. 

Pub. L. No. 107-330, § 403, 116 Stat. 2820, 2833 (2002). 
03-7105 6

case and the work of non-attorneys in general. Abbey v. Principi, 17 Vet. App. 75 

(2003). 

After receiving the parties’ submissions, the Court of Appeals for Veterans 

Claims in September 2003 granted Mr. Abbey’s EAJA application in full, including fees 

for work performed by Mr. Stewart at the rate of $120 per hour. Abbey v. Principi, 17 

Vet. App. 282 (2003). The court simultaneously granted the EAJA application of 

another veteran who had used Mr. Stewart’s services, again at the $120 hourly rate. 

Pentecost v. Principi, 17 Vet. App. 257 (2003). In both cases the court held that the 

enactment of section 403 of the VBA “requires a different outcome from that in Wilson.” 

Abbey, 17 Vet. App. at 292; Pentecost, 17 Vet. App. at 260. 

In Abbey and Pentecost the court interpreted section 403, which grants the Court 

of Appeals for Veterans Claims the “authority to award fees and expenses” of nonattorney practitioners “in an amount determined appropriate” by the court, as recognition 

of the unique role of non-attorney practitioners appearing before the court; the statute 

thus permits the court to consider a particular non-attorney practitioner’s level of 

experience and expertise when determining a reasonable and appropriate fee. Abbey, 

17 Vet. App. at 292; Pentecost, 17 Vet. App. at 260-61. Based on Mr. Stewart’s 

experience representing over 200 appellants before the court after a twenty-five year 

career working for the Disabled American Veterans, the Court of Appeals for Veterans 

Claims readily approved fees for Mr. Stewart at the $120 hourly rate. 

The Secretary did not appeal the Abbey and Pentecost decisions to this court. 

Relying on those decisions, the Court of Appeals for Veterans Claims has since 

awarded fees for Mr. Stewart’s services at the $120 hourly rate in other cases, as 
03-7105 7

indicated in a number of nonprecedential opinions issued during the last year. See

Appellant’s Reply Br. Addendum. In many of those cases, as in Abbey and Pentecost

and also in the case before us, Mr. Stewart’s work was performed prior to the December 

2002 enactment of the VBA. More recently, the Court of Appeals for Veterans Claims 

awarded fees for work performed by Mr. Stewart after the enactment of the VBA at the 

rate of $126.73 per hour, an increase over the previously approved $120 rate based on 

the change in the Consumer Price Index during the relevant time period. Evington v. 

Principi, 18 Vet. App. 331 (2004). 

Because of the happenstance of the timing, the Abbey and Pentecost decisions 

had no effect on the EAJA fees awarded to Mr. Wilson, since by the time those cases 

were decided in September 2003 the Court of Appeals for Veterans Claims had already 

entered judgment in his case, and he had filed a notice of appeal with this court. After 

the appeal was filed, this court in June 2003 stayed the briefing schedule and directed 

Mr. Wilson to show cause why his appeal should not be dismissed for lack of 

jurisdiction. In August 2003, after reviewing the parties’ submissions regarding 

jurisdiction, a judge of this court lifted the stay of the briefing schedule and deferred the 

issue of jurisdiction to the merits panel. 

Then, shortly after the Abbey and Pentecost decisions issued in September, 

counsel for Mr. Wilson contacted Government counsel, offering to file with this court a 

joint motion to vacate the judgment below and remand for reconsideration in light of 

Abbey and Pentecost. Appellant’s Br. at 21. That of course would have been a simple 

and straightforward solution to this timing dance, and would have afforded the Court of 

Appeals for Veterans Claims the opportunity to reconsider Mr. Wilson’s case in light of 
03-7105 8

that court’s later treatment of similarly situated claimants. According to Mr. Wilson, the 

Secretary rejected this offer. Id. The parties proceeded to file their appeal briefs, and 

the matter is now before us for decision. 

DISCUSSION 

1. Section 402—Jurisdiction 

Section 402 of the VBA amended 38 U.S.C. § 7292, which sets out the scope of 

this court’s jurisdiction to review decisions of the Court of Appeals for Veterans Claims. 

The statute as amended provides in relevant part: 

(a) After a decision of the United States Court of Appeals for Veterans 

Claims is entered in a case, any party to the case may obtain a review of 

the decision with respect to the validity of a decision of the Court on a rule 

of law or of any statute or regulation . . . or any interpretation thereof 

(other than a determination as to a factual matter) that was relied on by 

the Court in making the decision. 

. . . 

(d)(2) Except to the extent that an appeal under this chapter presents a 

constitutional issue, the Court of Appeals may not review (A) a challenge 

to a factual determination, or (B) a challenge to a law or regulation as 

applied to the facts of a particular case. 

38 U.S.C.A. § 7292 (West 2002 & Supp. 2004) (emphasis added). 

The emphasized phrase was added to the statute by section 402 of the VBA. 

Under the statute before it was thus amended this court considered that its jurisdictional 

grant regarding review of decisions of the Court of Appeals for Veterans Claims was 

basically “issue jurisdiction.” Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en 

banc). This meant that, in general terms, if an issue was not presented to that court and 

in effect a part of the court’s decision it was not subject to review on appeal to this court. 
03-7105 9

Several months after this court decided Forshey, Congress enacted the VBA, 

including both section 402 and section 403. While the full effect of the section 402 

amendment to our jurisdictional statute has not been determined, we recently explained 

that it “means at least this much: in a case . . . in which the decision below regarding a 

governing rule of law would have been altered by adopting the position being urged, this 

court has jurisdiction to entertain the matter, even though the issue underlying the 

stated position was not ‘relied on’ by the [Court of Appeals for Veterans Claims].” 

Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003). 

Mr. Wilson’s principal argument on appeal is that if the Court of Appeals for 

Veterans Claims had considered section 403 of the VBA when it determined his EAJA 

award, as it later did in Abbey and Pentecost, the court would have approved the $120 

hourly rate he requested for Mr. Stewart’s services. Mr. Wilson recognizes that under 

§ 7292(d)(2), set out above, we lack jurisdiction to review the ultimate conclusion as to 

the appropriate hourly rate because that review involves the application of law to facts. 

He contends, however, that we do have jurisdiction to decide as a matter of law whether 

the Court of Appeals for Veterans Claims wrongly failed to consider the VBA when 

addressing his EAJA application. 

The Government argues, as it frequently does, that this court does not possess 

jurisdiction to entertain this appeal. The Government notes that the issue decided by 

the Court of Appeals for Veterans Claims with respect to Mr. Wilson’s EAJA application 

was whether $90 or $120 was a reasonable rate for Mr. Stewart’s work. Because 

resolution of that issue involves only a factual question or the application of law to facts, 

the Government contends that no aspect of the decision of the Court of Appeals for 
03-7105 10

Veterans Claims is reviewable. Alternatively, in the event we conclude that we have 

jurisdiction to consider Mr. Wilson’s appeal, the Government urges us not to exercise 

our review authority as a matter of prudential consideration since the issue was not 

properly presented to the Court of Appeals for Veterans Claims. 

At the time Mr. Wilson argued his case before the Court of Appeals for Veterans 

Claims, the VBA had not yet become law. Therefore it is not surprising that no issues 

concerning the validity or interpretation of section 403 of the VBA were raised by Mr. 

Wilson before the court, or discussed or implicated in that court’s decision. Had this 

appeal been filed under the pre-VBA version of section 7292, it is likely that jurisdiction 

would not lie to address Mr. Wilson’s main challenge to the decision below, i.e., that the 

court should have considered the effect of section 403 of the VBA on its authority to 

determine an appropriate EAJA rate for work performed by a non-attorney practitioner. 

See Forshey, 284 F.3d at 1338. 

In Morgan we concluded that section 402 of the VBA added a new jurisdictional 

basis to our review statute—“rule of law” jurisdiction—under which we may review a 

decision with respect to a rule of law even though that rule of law was not “relied on” by 

the Court of Appeals for Veterans Claims. Morgan, 327 F.3d at 1361. We have 

interpreted the revised statute as conferring on this court a form of “case jurisdiction,” as 

opposed to “issue jurisdiction.” Id. 

Even so, the Government contends that Mr. Wilson’s appeal does not fall within 

this court’s “rule of law” jurisdiction because it does not concern a judicially created rule 

of law. In Morgan, the question was whether equitable tolling came within the scope of 

our “rule of law” jurisdiction. Id. at 1363. Equitable tolling, of course, is a judge-made 
03-7105 11

doctrine and was specifically mentioned in the legislative history as an example of a 

“rule of law” that previously had not been subject to review by this court. Id. at 1362-63. 

We had no difficulty finding that review of the Morgan issue was within our new 

jurisdictional grant. 

Though the issue in Morgan was a judge-made rule, nothing in our Morgan

opinion restricted “rule of law” jurisdiction to legal principles developed solely by the 

courts. As we expressly stated in Morgan, examination of the full extent of the 2002 

amendment to section 7292 would have to await further cases. Id. at 1364. We now 

hold that a “rule of law” within the meaning of 38 U.S.C. § 7292 as amended is not 

limited to those judicially created, but, as a simple matter of plain meaning, includes 

legislatively created law as well. The issue raised by Mr. Wilson—the applicability vel 

non of section 403 of the VBA to the determination of EAJA fees for non-attorney 

practitioners—is such a rule of law. 

Thus the decision by the Court of Appeals for Veterans Claims in this case, in 

which the court failed to consider the impact of a law in effect at the time of its decision, 

is a “decision of the Court on a rule of law” within the meaning of 38 U.S.C. § 7292. We 

therefore conclude that this court has “rule of law” jurisdiction in this case to address 

whether the Court of Appeals for Veterans Claims wrongly failed to consider the effect 

of section 403 of the VBA on the court’s authority to award EAJA fees for non-attorney 

practitioners. 

2. Section 403—Applicable Law 

When the Court of Appeals for Veterans Claims decided Mr. Wilson’s case, it did 

not apply section 403 of the VBA, the law in effect at the time. The Court of Appeals for 
03-7105 12

Veterans Claims itself later acknowledged this error in Abbey and Pentecost, in which 

the court for the first time considered the effect of section 403 of the VBA. See Abbey, 

17 Vet. App. at 292 (stating that enactment of section 403 of the VBA “requires a 

different outcome from that in Wilson”); Pentecost, 17 Vet. App. at 260 (same). This 

sudden change in course resulted in disparate treatment for identically situated 

veterans—those whose EAJA applications requested compensation for time expended 

by Mr. Stewart prior to enactment of the VBA and were filed prior to enactment of the 

VBA, but were ruled on by the Court of Appeals for Veterans Claims after the VBA 

became law. The court denied the $120 hourly rate in those cases decided before its 

September 2003 decisions in Abbey and Pentecost, but awarded the $120 hourly rate in 

those cases decided thereafter. The September 2003 date seems to have no legal 

significance, other than being the date when the court finally addressed the question of 

the applicability of section 403 to the EAJA awards. 

The Government strongly urges us not to consider the merits of Mr. Wilson’s 

appeal on two grounds. First, according to the Government, Congress did not intend 

section 403 of the VBA to apply ‘retroactively’; in the Government’s view that section of 

the VBA does not apply to this case because the work performed by Mr. Stewart and 

the filing of Mr. Wilson’s EAJA application predated enactment of the VBA. And 

second, as a prudential matter, this court should not address issues that were not 

properly raised below. 

‘Retroactivity’ is one of those troublesome concepts regarding which it is possible 

to find law supporting any position one wishes to defend. As we explained in Dyment v. 

Principi, 287 F.3d 1377 (Fed. Cir. 2002), “the Supreme Court has held that a federal 
03-7105 13

statute will not be given retroactive effect unless Congress has made its contrary 

intention clear.” Id. at 1385 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 272-73 

(1994)). The Supreme Court has also admonished that “a court is to apply the law in 

effect at the time it renders its decision, unless doing so would result in manifest 

injustice or there is statutory direction or legislative history to the contrary.” Bradley v. 

Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974); see also Bernklau v. Principi, 291 

F.3d 795, 804 (Fed. Cir. 2002). 

We need not engage all the perambulations attendant on the basic concept of 

retroactivity and its varied applications. It is enough to observe that the issue here is 

not one of whether an individual is being disadvantaged (or for that matter advantaged) 

by a claimed retroactivity of legislation not applicable at the time of the complained 

about conduct. The issue here is a different and narrower question: whether a statute 

governing a court’s power can apply when the court addresses an issue which brings 

that power into play, even though the conduct raising the issue occurred earlier than the 

statute. Bradley would appear to decide that with a clear yes. Furthermore, the Abbey

and Pentecost decisions by the Court of Appeals for Veterans Claims undercut the 

Government’s objection. As noted, those two cases presented the same temporal 

scenario as the case before us. In ruling on the EAJA applications in those cases, the 

Court of Appeals for Veterans Claims must have concluded that section 403 applied to 

its power to make the decision at issue, even though the applications themselves had 

been filed prior to enactment of the VBA. The Government opted not to appeal Abbey

and Pentecost to this court, and those cases are now the law of the Court of Appeals for 

Veterans Claims. 
03-7105 14

The second objection the Government raises to our addressing the merits of this 

case is that as a prudential matter this court should decline to consider issues not raised 

below. It is certainly true that the Supreme Court, though affirmatively acknowledging 

the power of courts of appeals to decide issues that were not directly raised below, 

cautioned that such instances should be exceptional. The Court stated that such 

instances should be based on “particular circumstances which will prompt a reviewing or 

appellate court, where injustice might otherwise result, to consider questions of law 

which were neither pressed nor passed upon . . . below.” Hormel v. Helvering, 312 U.S. 

552, 557 (1941). The matter is one left largely to the discretion of the court of appeals. 

Singleton v. Wulff, 428 U.S. 106, 121 (1976). 

More recently, in Forshey we identified some of the circumstances in which we 

might wish to exercise our discretion to consider issues not raised below, particularly in 

the context of veterans claims cases. See 284 F.3d at 1353-58. Recognizing as we 

must that such circumstances must be carefully restricted, we mentioned four in which 

“we may consider such issues where it is appropriate to do so under all the 

circumstances.” Id. at 1358. 

The first of the Forshey examples is essentially on point. This is the 

circumstance when courts have an obligation to apply a new statute that becomes 

effective while an appeal is pending. In discussing this example, we again quoted from 

Bradley to the effect that a court is to apply the governing law at the time it renders its 

decision “unless doing so would result in manifest injustice or there is statutory direction 

or legislative history to the contrary.” Id. at 1356. The Government, though arguing that 

there is no basis for an exception in this case, points to no such Congressional 
03-7105 15

direction. If, by application of this rule, this court on appeal should consider section 403 

applicable to Mr. Wilson’s case, a fortiori the Court of Appeals for Veterans Claims 

should have considered it since it was enacted not just while Mr. Wilson’s appeal was 

pending before this court, but while his EAJA application was pending before that court 

in the first instance. 

Under the circumstances presented by this case, in which there is a clear case of 

disparate treatment of similarly situated persons, circumstances which the Government 

could have resolved by agreeing to the requested remand, it behooves us in the 

exercise of our discretion as a matter of justice to address the question presented, i.e., 

whether the Court of Appeals for Veterans Claims should have taken section 403 of the 

VBA into account when it decided Mr. Wilson’s EAJA petition. We conclude that, in light 

of that court’s subsequent actions in other cases similarly situated, the answer must be 

yes. At the very least, that opportunity should be afforded the Court of Appeals for 

Veterans Claims. 

Accordingly, we hold that the Court of Appeals for Veterans Claims wrongly failed 

to consider the effect of section 403 of the VBA on its determination of the appropriate 

fee for the non-attorney practitioner employed by Mr. Wilson. We vacate the decision 

below and remand for the Court of Appeals for Veterans Claims to reconsider the 

appropriate hourly rate for Mr. Stewart’s time in light of that court’s decisions in Abbey

and Pentecost. 

VACATED and REMANDED