UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 12-3483(E)

J O S E P H J

. F R

O I O , A P P E L L

A N T ,

V

. R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appellant' s Application for A ttorney Fe es and Expenses

(Argued May

6, 2015 Dec ided May 29, 2015)

Daniel L. Nagin , of J amaica Plain, Massac husett s , wi th whom Robert V. Chisholm , of Providence , Rhode I sland, was on the ple ading for the a ppellant.

Ronen Morris , with whom Tammy L. Kennedy , Acting Gene ral Co u n s el ; and Mary Ann Flynn , Assistant Gene ral Counsel, wer e on the pleading , all of Washington, D.C., for the appellee

. Samuel W

. Apicelli , of Philadelphia, Pennsy lvania, and Steve Berenson , of San Di ego, California, wer e o n t h e p l eading for Steve Be renson, Br ian Clauss, Ang ela K. Drake, Kristine A. Huskey , J ames C. May , Hug h McClean, L aurie For bes Ne ff, Ma thew Randle, Patricia E. Roberts, Susan Saidel, Stacey -Rae Simcox , Aniela Sz y manski, Michae l J

. Wis hnie, Conne ct i cu t Veter ans L eg al Center, a

nd the National Ve tera

ns L eg al Service s Progr am as amici curiae

. Paul W

. Browning , of Washington, DC, and Daniel C. Cooley , of Reston, Virg inia, wer e on the pleading for Clinical L eg al Education Association as amicus cur iae.

Be fore MOORMAN, SCHOEL EN, and B ARTL EY, Judges

. MOORMAN, Judge : Be fore the Court is the appellant' s applicati o n for an awa rd of $11,654.23 for attorney fee s and expenses pursuant to the Equal Acc ess t o J u s t ice Act (EAJA), 28 U.S.C. § 2412(d). The S ecr etar y filed a response in opposition to that application. The EAJ A application satisfies the EAJ A pl eading require ments. 28 U.S.C. § 2412(d)( 1)(b)

. The appellant

asser ts that he is a preva iling party , that he is elig ible for an awa rd based on his net worth, and that the Secr etar

y ' s position was not subst antially justified; and his EAJ A applica tion includes a list offee s and expenses soug ht. See Scarborough v. Principi , 541 U.S. 401 (2004). The Secre tary does

not contest the appellant' s elig ibilit y for an EAJA awa rd. The Secre tary opposes the application only
to the extent the appellant seeks fe es for work perf ormed by law students of the L eg al Service s Center of Har

vard L aw School. For the rea sons that follow, the Court will g rant the application in part.

I. BACKG ROUND This application stems from an appea l of a November 2, 2012, decision o f t h e Board of Veter ans' Ap p ea ls (B oard) that denied the appellant' s claim for entitlement to an initial disability rating in excess of 50% for his service -conne cted post-traumatic stress disorder prior to Aug ust 21, 2009, and g rante d a 70% disability rating as of Aug ust 21, 2009. Record (R.) at 3-21. On Fe bruar y 18, 2014, the Court issued a memorandum decision vaca ting the Boa

rd' s decision and rema

nding the
matter for rea djudication. Froio v . Shinseki , No. 12-3483, 2014 WL 594096 (U.S. Vet. App. Fe b. 18, 201 4 ). T h e C o u rt held that the Boa rd clea rly err ed in failing to consider and dispose of the appellant' s rea sonably raised issue o f enti tlement to a tot al di sability rating based upon individual unemploy ability

. Id

. The Court also held that th e Bo ar d er re d in failing to obtain the appellant' s Social Security

Administration recor ds befor e it adjudicate d his claim. Id

. The appellant is repr esente d by the law firm of Chisholm Chisholm & Kilpatrick (Chisholm) and the L eg al Service s Center of Har vard L aw School. The appellant enter ed into a fee ag ree ment with Chisholm in November 2012. The fee ag ree ment states that Chisholm "sha ll only char g e a fee
to the [appellant] in the event of s u cc es s fu l re p resentation at the Court" and that "no fee shall be
soug ht from the [appellant] except throug h an application for EAJA fee s to the Court." I n Fe bruar y 20 1 3 , the appellant executed another fee ag ree ment with the Chisholm firm. This second fee
ag ree ment is identical to the November 2012 fee ag ree ment, except for an additional clause in which the appellant consente d to "pa rticipation in this case of law students fr o m Har vard L aw School's L eg al Service s C en t er wh o will serve as co-c ounsel in this matter with [C hisholm] ." The fee
ag ree ment stated that Chisholm would continue to act as lead counsel. L aw students are permitted to appea r bef ore this Court pursuant to Rule 46(b)( 1)(G) of our Rules of Pra ctice a nd Procedur e.

2On J une 11, 2014, the appellant filed a timely application for fee s and expenses pursuant to

EAJA. The appellant' s application seeks fee s and expenses in the amount of $ 1 1 , 6 5 4.23, which includes fee s for work perf ormed by four law school students participa ting in Har vard' s clinical leg al service s prog ram, and their supervising attorney

. The Secre tary filed a response in opposition to the appellant' s EAJA application, ar gu i n g t hat work perf ormed in an aca demic setting should not be reimburse d pursuant to EAJA. The appellant filed a reply in support of his application. I n J anuar y 2015, the Court g rante d the motion of Steve Be renson, Br ian Clauss, Ang ela K. Drake, Kristine A. Huskey , J ames C. May , Hug h McClean, L aurie For bes Ne ff, Ma thew Randle, Patric ia E. Roberts, Susan Saidel, Stacey -Rae Simcox , Aniela Sz y manski, Michae l J

. Wis hnie, C o n n ec t icut Veter ans L eg al Center, and the National Veter ans L eg al Service s Prog ram for leave to file an amici curia e brief in support of the ap p el l an t 's EAJA application. The Court also g rante d the motion of the Clini cal L eg al Educa tion Association for leave to file an amicus curia e brief. The amici filed their briefs on January

14, 2015, and January

16, 2015, respe ctively

.

II. ANALYSIS This Court has jurisdiction to awa rd attorney fee s pursuant to 28 U.S.C. § 2412(d)( 2)(F ). The appellant' s EAJA application was fi l ed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)( 1)(B ), and the application meets the statutory content require ments beca use it contains (1) a showing that the appellant is a preva iling party ; (2) a showing that he is a party elig ible for an awa

rd beca use his net worth does not exceed $2,000,000; (3) an alleg ation that the Secre tary ' s position was not substantially just i fied; and (4) an itemiz ed statement of the attorney fee s and
expenses soug ht. See28 U.S.C. § 2412(d)(1)( A), (1) (B ), (2) (B ); Scarborough , 541 U.S. at 408. The Secre tary does not dispute, and the Court finds, that the appellant is a preva iling party

. See Sumner v. Principi , 15 Vet.App. 256, 264-65 (2001) (e n b an c), aff' d sub nom. Vaughn v. P r i n ci p i , 336 F.3d 1351 (F ed. Cir. 2003). The Secre tary also does not dispute the appellant 's alleg ation that the pos ition of t he S ecr etar y was not substantia l l y j u s t i fi ed; according ly , the C ourt need not further addre ss this issue. See Cull ens v. Gober , 14 Vet.App. 234, 2 3 7 (2001) (en banc) (once an appellant alleg es no substantial justification, the burden shifts to the Secre tary to prove that VA wa s substantially

justified in administ rative a nd litigation positions); see also Cook v. B rown ,

36 Vet.App. 226, 237 (1 9 9 4 ) (t h e C ourt need not addre ss whether the Secre tary ' s position was

"substantially

justified" whe n the Secre tary does not a ssert such a defe nse, but expressly conce des the issue), aff'

d , 68 F.3d 447 (F ed. Cir.1995). Acc ording ly , the Court concludes tha t the appellant is entitled to an EAJ A awa rd. The Secre tar y opposes awa rding EAJA fee s to the appellant for work perf ormed by law students as part of the educational law school clinic at Har vard L aw School. Although the Secre tary

conce des that fees ca n b e aw arde d pursuant to EAJA for work perf ormed by law students, the Secre tary arg ues that fee s should not be aw ar d ed fo r work perf ormed by law students in an educational setting, i.e., as part of a clinical educational progr am i n further ance o f t h ei r aca demic interests. The Secre tary also arg ues that, should the Court "e x tend" EAJA to permit such an awa rd, the Court should ensure that any awa rd of fee s does not result in a financ ial windfall to Har vard L aw School. Finally , the Secre tary arg ues that an awa rd of attorney fee s pursuant to EAJA for work perf ormed by th e L ega l Service s Center of Har vard L aw School does not further the purpose of EAJA nor does a denia l of such fe es def eat EA J A' s g oals. 1. "Cong ress passed the EAJA in respons e t o i ts conce rn that persons ' may be deter red from seeking revie w of, or defe nding ag ainst, unrea sonable g overnme ntal action beca use of the expense i n v o l ved in secur ing vindication of their rig hts.'" Sullivan v. Hudson , 490 U.S. 877, 883 (1 9 8 9 ).

"' The objective of EAJA is to eliminate financ ial deter rents to i n d i v i d uals attempting to defe nd themselves ag ainst unjustified g overnme nt action. Veter ans are among the ty pes of individuals the
statute was intended to help.' " Abbs v. Principi , 237 F.3d 1342, 1347 (F ed. Cir. 2001) (quoting H.R. R E P

. N O

. 102-1006, at 25 (1992), 1992 U.S.C.C.A.N., 3921, 3934. "E AJ A applies, and its centr al policy is of particula

r sig nificanc e, in the ' uniquely pro-c laimant' sy stem for adjudicating veter ans' claims for benef

its" beca use EAJA "' helps to ensure that [veterans] will seek an appeal wh en the [Department of Veter ans Affa irs] has failed in its duty to aid them or h as o t h er wi se err oneously denied them the benef

its that they have ear

ned.' " W agner v. Shinseki , 733 F.3d 1343, 1344 (F ed. Cir. 2013) (alter ations in orig inal) (quoting Kelly v. Nicholson , 463 F.3d 1349, 1 3 5 3 (Fed.Cir.2006)). This Court has rec og nized that "attorney s who repr esent veter ans and their survivors provide value

4both to their clients and to the courts befor e which they prac tice" and has expressed its intention to

encour ag e that re prese ntation. Golden v. G ibson , 27 Vet.App. 1, 6 ( 2014). I n further ance of the purposes of EAJA and encouraging the availability of leg al
repr esenta tion of high quality for veter ans, this Court has consistently held th at fe es s h o u ld be

awa rded pursuant to EAJA to an otherwise elig ible appellant for work perf ormed by leg al service s org anizations a

nd counsel appea

ring pro bono. Stillw ell v. Brown , 6 Vet.App. 291, 298-99 (1994) (citing Phillips v. GSA , 924 F.2d 1577, 1583 n.4 (F ed. Cir. 1991)) (the fac t t h at t h e appellant incurre d no fee s or expenses beca use she was repr esente d on a pro bono basis does not prec lude an EAJA award) . I t is also well settled that attorney fee s can be awa

rded pursuant to E AJ A for wor k perf ormed by attorney -super

vised nonattorney s and law students. Sandoval v. Brown , 9 Vet.App. 226, 230 (1996). The Supreme Court, and lower courts, have approve d t h e i n cl usion of fee s for para leg als, law cler

ks, and law students, in fee awa rds under EAJA or analog ous fee -shifting statutes, on the theory t h at t h ei r work contributed to their supervising attorney ' s work product, was traditionally done and billed by attorney s, and could be done eff ectively by nonattorney s under supervision for a lower rate , there by lowering
overa ll lit igation costs. Cook v. Brown , 68 F.3d 447, 453 ( Fe d. Cir. 1995). 2. The Secre tary does not challe n ge this Court's long standing prac tice of awa rding fee s pursuant to EAJA f

or work perf

ormed by law students or for wor k perf ormed whe n a fe e has not, in fac t, been char ged t o t h e ap p ellant. The fee s challeng ed by the Secre tary in this matter are for work perf ormed by law students supervised by licensed attorney s who repr esente d the appellant on

a pro bono basis. Pursuant to our case law, there fore , the challeng ed fee s are authorized under EAJA. The S ecr etar

y , howeve r, seeks a categ orica l exclusion from the awa rd of EAJA fe es fo r p ro bono work perf o rm ed b y l aw students in what the Secre tary has define d as an "e ducational setting" as opposed to a "ma

rketplac e setting." The Secre tary urg es that EAJA's waiver of sovere ign immunit y is limit ed to fee s incurre d in the marke tplace and that the statute does not expressly extend that waiver to fee s incurre d in an educa tional setting. See Jones v. W est , 13 Vet.App. 129 (1999) (EAJA is a waiver of sovere ign immunit y and there fore should be strictly construed in the Government' s

5favor ). But see Richlin v. C hertoff , 553 U.S. 5 7 1 , 5 89 (2008) ("The sovere ign immuni ty canon is just that–a canon of

construction." ). T h e S ec re tary arg ues that fee s should not be awa rded for the Har

vard law students' wo rk beca use it was per formed in a n educa tional setting, in fur

thera nce of the students' leg al educ ation,

as opposed to being perf ormed in an employ

ment s ett ing. The Secre tary emphasizes that in perf orming the work a s part of a clinical leg al prog ram, the students obtaine d aca demic cr edit and
prac tical l eg al ex perie nce, and t hat participation in the cl i n i c fu lfilled aca demic requirements and
may have f ulfilled, in whole or part, a requirement that Har vard law students perf

orm 40 hours of pro bono work before g raduation. Accor dingly , the Secr etar y arg ues t hat "[t ]he law st udents who participa t ed i n the law clinic as part of their educa tional experience did not provide ' the same

s e r v ic es that a licensed attorney or experience d non-attorne y prac titioner wou ld p r o v id e
. ' " Se c r e ta r y ' s Response at 7 (quoting EAJA Application at 12-13). Although the Secre tary acknow ledg es that the appellant benef

itted from the law s tudents' work, the Secre tary maintains that the "a ssistance provided to [t he a]ppellant was perf ormed as par t o f a lear

ning experience and was simply a by product of the educational undertakings b y t h e s t u dents and is not proper ly billed to the Gover nment under the EAJA." Id

. At oral a rg ument, the Secr etar

y further explained this t heory , urg ing tha t EAJA authorizes only fee s incurre d in a "ma rketplac e" setting and that the work perf ormed by the law students could
not be sold in the marke tplace and, there fore , was purely educational. When asked at oral arg ument whether a law school student ear ning aca demic credit for working at a law firm would be eligible for EAJA fee s, the Secre tary stated that, in deter mining the answe r to this question, the fac ts would be "ve ry important." Froio v. McD onald , U.S. Vet. App. No. 12-3483(E) , Ora l Arg ument at 48:41

- 49:24 (May 6, 2015), available at htt p : / / www.uscourts.cavc .g ov/oral-a rg uments_audio.php. He explained: "I f ul timately [a law st udent' s work] was per formed in an educational environment out of an aca demic obliga tion, then the Secre tary ' s position would likely " be that the work would not be elig ible for EAJA fee s. Id. Howeve r, "[i]f [t he work] was not and the rec eipt of cre dit was simply the by product of the students' participa tion in the marke tplace," then the Secre tary would likely not oppose EAJA fees. Id.

6The appellant does not dispute that the law students worke d in an aca demic set ting. He

arg ues t hat t he educational natu re of t he work, howeve r, does not prec lude pay ment of fees under EAJA for work pe rfor

med in support of his appea l. The Secre tary ' s arg ument is primarily based upon the premise that beca use the law students

rec eived persona l educational benef it from repr esenting the appellant, their work may no longe r be considere d marke table work war ranting leg al fee s. The Secre tary arg ues "the g en e r a l a c c e p ta

nce that

an appellant may seek to rec over fee s for work perf ormed by law school students even though they

are not attorney s is predic ated on the assumption that law school students for whose work attorney fee s are soug ht wer e act i n g i n an employ ment capa city perf

orming tasks in lieu of a full-fledg ed attorney ." Secre tary ' s Response at 4-5 (citing Cook , 68 F.3d at 45 3 ). Notwithstanding the Secre tary ' s sug g estion to the contra ry , nothing in the U.S. Court of Appea ls for the Fe dera l Circuit's decision in Cook sug g est s t h at working in an "e mploy ment capa city " is a require ment for reimburse ment under EAJA. The Secre tary is c orre ct that the premise upon which EAJA fee s can be awa rded is that the tasks perf

ormed by the law students will be "in lieu of a full-fledg ed attorney ." Id

. I t simply does not follow, howeve r, that the mere fac t that the law students' work also benef itted their leg al education preve nted that work from also "c ontribut[ ing] to their supervising at t o rney ' s work product," "the reby low er i n g o v era ll litigation costs." Cook , 68 F.3d at 453. The Secre tary maintained at oral arg ument that, beca us e E AJ A i s a waiver of sovere ign immunit y , it is the appellant' s burden to establish that EAJA exp re s s l y allows an awa rd for work perf ormed in an educa

tional setting and the Secre tary need not demonstrate that EAJA prec ludes such an awa

rd. The Court disag ree s. I n holding that EAJA fee s may be awa rded for work perf

ormed by para leg als, notwithstanding that the lang uag e of EAJA only provides for "a ttorney fee s," the U.S. Suprem e C o u rt held when "tr aditional tools of statutory construction and considera tions of stare decisis compel the conclusion that para leg al fee s are rec overa ble as attorney ' s fee s at their ' preva iling marke t rate s'

. . . [t ]here is no need for [t he Court] to resor t to the sovere ign immunit y canon beca use there is no ambiguity

left for us to construe." Richlin , 533 U.S. at 589. The Secre tary further sug g ests that the word "f ee" itself contemplates only service s that are available in the marke tplace. Nothing in the lang uag e of EAJA, or the word "f ee" limit s an aw ard
to work perf

ormed in an "e mploy

ment" or "ma

rketplac e" setting. The Secre tary cites no case in this

7Court or in any other j u ri s d i ction, and the Court is unawa re of any such case , that rec og nizes the distinction the Secre tary attempts to cre ate betwee n work perf ormed in a "ma

rketplac e setting" and the s ame work perf

ormed in an "educ ational setting ." Mor eover , the S ecr etar y ' s theory is direc tly
contra dicted by the well-settled case law that allows the awa rd of EAJA fee s in case s wher e no actua l "f ee" was incur

red, in the case of pr o bono repr esenta tion, see Stillwell , 6 Vet.App. a t 298-99 (the fac t that the appellant incurre d no fee s or expenses beca use she was repr esente d on a pro bono basis does not prec lude an EAJA awa rd), and in case s wher e the work was perf ormed by persons who are not attorney s, that is, by para leg als and law students, see Missouri v. Jenk ins , 491 U. S

. 2 74, 285 (1989) (" Clearly , a ' rea sonable attorney ' s fee ' cannot have been meant to compen s at e o n ly work perf ormed persona lly by members of the bar." ); Cook , 68 F.3d at 453; Sandoval , 9 Vet.App. at 230. There is no fac tual or leg al basis for the Secre tary ' s attempt to arbitra rily classify the work perf

ormed by the Har

vard law students in this case as outside the leg al marke tplace. The Court finds the plain lang uag e of EAJA, rec og nized by the body of case law interpre ting EAJA, t o b e d ispositi ve, and
t h er ef o re, there is no need to acc ept the Secre tary ' s invitation to resor t to the sovere ign immu n i t y

canon to cre ate a unique limit ation on rec overy of fee s for work perf ormed in the Nation' s law school clinics by attorney -super

vised law students. See R ichlin, supra

. The Secre tary arg ues that "[n]either this Court nor any other court of rele vant jurisdiction has

ever extended EAJA to permit the rec overy of attorney fee s for work perf ormed by law school students in an aca demic setting , as par t of their manda tory

leg al educ ation." Sec reta ry ' s Response
at 1. Howeve r, the Secre tary has not cited a

ny case , in any

jurisdiction, that has denied fee s under EAJA, or any simil ar statute, on that basis. I n fac t, in eac h of the case s cited by the Secre tary , fee s

wer e awa rded for clinic students' work. See Lopez v. XTEl Constr. Grp., LLC , 838 F. Supp. 2d 346 (D. Md. 2012) (awar ding fee s for work of l aw students workin g in a law school clinical progr am, but reduc ing hours billed that could be attributed to the students' "e ducation" ); Elashi v. Sabol , No. 4:09-CV, 2010 WL 453677 4 , at *5 (M.D. Pa. Nov. 2, 2010) (" [A] leg al service org anization can obtain a fee awa

rd for the work of uncompensa ted l aw -s t u dents, reg ardle ss of their rec eipt of

aca demic cre dit for their service s.") ; DiGennaro v. Bowen , 666 F. Supp. 426, 430 (E.D.N.Y

. 1987) ("W e s ee no rea son to deny a fee awa rd

. . . for the supervised hours rea sonably expended by
uncompensa ted law-students working in a clinical fac ility , despite thei r r e c eipt of aca demic cre dit.").

8The Secre tary invites this Court to be the first to cate g orica lly exclude EAJA fee s for work

per fo rm ed by law st udents in law school clinic progra ms. The Court finds the availability of free clinical leg al prog rams to be of value to both the vete rans they repr esent and to this Court, a nd we will not discourag e such repr esenta tion by arbitra rily limit ing an EAJA awa rd b ased upon the artificia l cate g orizations the S ecr etar y attempts to cre ate. As noted above, EAJA's central g oal of eliminating f

inancial de terre nts to indi viduals attempting to de fend the mselves ag ainst unjustified Gover nment action "is of particula r signific ance , in the ' uniquely pro-c laimant' s y s tem for adjudicating veter ans' claims for be nefits." W agner , 733 F.3d a

t 1344. 3. The Secre tary arg ues that, should the Court hold that EAJA authorizes the awa rd of attorney fee s for work perf

ormed by the law students in this matter, "the Court should ensure that any awa rd of fee s does not result in a financ ial windfall to Har vard L aw School." Secre tary ' s Response at 13. The Secre tary sug g ests that Har vard L aw School's status as a tax-ex empt org anization, which allows it to rec eive a tax benef

it from the Fe dera l Gover nment, as well as t h e fa ct t h at Har vard collects tuition from its students, rende rs the aw ard of EAJA fees a w indfall to the university

. The U.S. Supreme Court has cautioned that attorney fee awa rds are meant to suppo rt the
g oals of the underly

ing statutes, but should not result in f inancial windfalls to a

ttorney s. Farrar v. Hobby , 506 U.S. 103, 113 (1992). Howeve r, in deter mining whether the awa

rd would amount to a windfall, the Supreme Court questioned the rela tionship betwee n t h e p re v ai l ing party ' s deg ree of

succe ss and the amount of the fee s soug ht. Farrar , 506 U.S. a t 116 (O' Connor, J ., concur ring ) (an

awa rd of one dollar from one defe ndant, afte r filing a lawsuit demanding 17 milli on dollars from 6 defe ndants, 10 y ear s of litigation, and 2 trips to the Court of Appea ls "is simply not the ty pe of victory that merits an awa rd of attorney ' s fee s")

. I n stark contra st, the Secre tary here arg ues that the leg al and economic status of the org anization making the attorney ' s service s available may cre ate a windfall. The court s h av e routinely awa rded attorney fee s for work perf ormed by leg al service s org anizations and pro bono counsel in g ene ra l

. See Stillw ell , 6 Vet.App. at 299. The Secre tary emphasizes this point and makes clea r that he is not challeng ing this prac tice. Secre tary ' s Response
at 14. The Secre tary arg ues, howeve r, that the L eg al Service s Center of Har vard L aw School "doe s

9not appea

r to be the ty

pe of leg al service s org anization or pro bono counsel contemplated by case law which has authorized that such fee s be g rante d." Id

. at 15. The Secre tary sug g ests that "the re is no indication . . . that Har

vard L aw School, or its law c linic, depends on the r evenue derive d from its
pro bono repr esenta tion to support its ong oing repr esenta tion of low and modera te-income veter ans and their f

amilies" and even notes that "H arva rd University is one of the wealthiest in the world." Id . at 16. Even if the C ourt we re t o p re s ume as true all the S ecr etar y ' s asser tions as t o Har

vard L aw School's financ ial status, tax-ex empt status, and its abili t y to sustain pro bono repr esenta tion of
veter ans without the potential to rec eive EAJA fee s, the Court finds these fac ts completely irrele vant. The Secre tary ' s arg ument ignor es the fac t that EAJA fee s are awa rded to the litigant, not 1 the attorney

. See Astrue v. Ratliff , 560 U.S. 586, 593 (2010); Shaw v. Gober , 10 Vet.App. 498, 506 (1997). I t is the client' s financ ial sta t u s t h at i s re levant, not the attorney ' s. See 28 U.S.C. § 2412(d)( 2)(B ). Nothin g in the EAJA statute or any case s cited by the Secre tary sug g ests that a preva iling party ' s entitlement to an awa rd o f att orney s fee s and expenses is conting ent upon the identity or need of the party ' s attorney

. Moreove r, the Secre tary ' s theory would put this Court in the position of having to inve stiga te the financ ial status of ever y law firm, leg al service s org anization, and law school clinic, and presumably condition any EAJA awa rd on the org anization's need for the funds. Clearly such an approa ch is not contemplated by EAJA. The long s t an d i n g prac tice of

awa rding EAJA fee s for work perf ormed by org anizations that provide leg al service s fre e of char g e

encour ag es pro bono repr esenta tion and has incre ased the availability of qualified repr esenta tion to

v eter ans fre e of char g e. See, e.g., S.E.C. v. Comserv Corp. , 908 F.2d 1407, 1415 (8 t h C i r. 1 9 9 0 ) (" [A] ssisti ng in the financ ing of the pro bono repr esenta tion e f f o r t, E A JA u n q u estionably contributes
to removing the deter

rent eff ect of fee s for those pro bono-depe ndent clients and there by incre ases the incidence of deser

ving repr esenta tion."). To subject eac h and ever y pro bono org anization to the

T he Co ur t notes that the app ellant and the am ici hav e set forth per suas ive argum ents in their br iefs 1 dem onstrating how the Leg al Services Center of Harvard Law School and law school clinics in gen eral do rely on EAJA fees to continu e to suppor t their eff or ts to assist veterans. How ever, w e note that b ecause our holding to day do es not req uire such or gan izations to pr ove their m otives or need for reim bursem ent of fees, w e m ake no fin ding as to Harvard ' s fin ancial status or the law clinic' s reliance upon the c o l l e ction of EAJA fees. T he Court com m ends Harvard ' s Leg al Services Center and sim ilar o rganizations and the w or k they do for vetera ns. 10scrutiny the Secre tary ' s theory would undoubtedly have a chil l i n g ef fec t on the availability of qualified leg al servic es, fr ee of char g e, to dese rving veter ans.

4. The Sec reta

ry asser ts that an awa

rd of attorne y

fee s pursuant to EAJA for work pe rfor med by the L eg al Service s Center of Har vard L aw School does not further the purpose of EAJA nor does

a denial of such fee s defe at its g oals. The Secre tary relies upon the unsubstantiated assumption that the Har vard L aw School L eg al Service s Center "doe s not appea r to rely on income g ener ated by its
pro bono repr esenta tion service s" and that "the clinic will continue to provide its service s reg ardle ss of whether it is awa

rded attorney fee s for those service s." Secre tary ' s Response at 20. The Secre tary conclude s, "[b]ased on that assumption, it is clea r that a denial of an awa

rd of fee s for service hours expended by Har

vard L aw School will not deter veter ans in t h ei r p u rs u i t of justice ag ainst the Secre tary ." Id

. Ag ain, even if the Court wer e to presume the Secre tary ' s basic assumptions were true, to hinge the appellant's award upon the identity of the org anization that perf ormed the service s would subject all leg al service s orga n i z at i o n s to the same scrutiny

. Pro bono veter ans leg al service s org anizations h ave assisted many veter ans in obtaining fre e leg al repr esenta tion of high quality befor e this Court. Although some org anizations, such as "w ealthy " law schools or larg e, succe ssful law firms, may very well be able to continue to provide leg al service s to v et er an s wi thout the availability of EAJA fee s, there can be no doubt that the possibili ty of rec overing fee s for unjustified Gover n me n t action promotes and encour ag es all org anizations that provide service s to veter ans. The Court will not chill that eff ect by now curbing an otherwise elig ible appellant' s rig ht to collect EAJA fee s based upon the identity or financ ial status of the attorney , firm, or org anization that has provided the leg al service s, particula rly wher e service s wer e provided on no basis o t h er t h an the mere possibili ty of the veter an' s preva iling ag ainst a Secre tarial administrative or appellate position that lacks substantial justification. EAJA does not seek to compensa te only those who oppose unjustified Gover nment action by enlisting the aid of understaf fed and underf

unded pro bono prog rams and EAJA does not seek to punish profitable law firms for their g ener osity in assisting those who possess littl e powe r to asser

t their rig hts ag ainst the Fe dera l burea ucra cy
.

115.

Al t houg h the Secre tary cites Lopez, supra , in support of his theory that fee s can n o t b e awarded in this case , Lopez illust rate s the proper focus in considering an awa rd of EAJA fee s for work perf

ormed by law students in a clinical p ro gram–the rea sonablene ss of the fee s. "I n deter mining the number of hours which wer e ' rea sonably spent' [on the litigation], t he Court may consider a number of fac tors, including whether the work perf ormed was duplicative, [whether] an attorney takes extra time due to inexperience , or [whether] an attorney perf o rm s t as k s n ormally perf ormed by para leg als, cler ical personne l, or other non-attorne y s." Ussery v. Brown , 10 Vet.App. 51, 53 (1997) (citing Sandoval, supra ). I n Lopez , althoug h the court awa rd ed fe es for work perf ormed by law students rec eiving aca demic cre dit in a law school clinic, the court reduc ed some of the hours billed that th e court deter mined wer e attributable solely to the students' education. Lopez , 838 F. Supp. 2d at 353. Recog nizi ng this, the appellant, in the case now befor e the Court, indicated in his EAJA application that he reduc ed the hours billed f or some of the law students' work taking into a ccount their inexperience and possibly duplicative work, as well as the time billed by their s u p ervising attorney s "in order to avoid claiming time spent educating students." EAJA Application at 13. The Secre tary arg ues that the billing statement ref lects, howeve r, that the appellant seeks to rec over fee s for work perf

ormed by Daniel L

. Nag in of the L eg al Service s Center of Har v ard L aw School and Z acha ry M. Stolz of Chisholm for supervision of the law students. Secre tary ' s Response at 12. The Secre tary also notes that the appellant seeks to re co ver fee s for work perf ormed by Mr. Stolz in revie wing Mr. Nag in's work. Id

. The Court ag ree s that this wor k is duplicative. Acc ording ly , the Court will reduce the hours re quested for work pe rfor

med by Mr. Stolz by

5 hours.

III. CONCLUSION Upon consider ation of the for eg oing and the pleading s of the parties, the appellant' s EAJA application is GRANTED I N PART.

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