UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 02-1481(E)

RUFUS Z. WHITE, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, DAVIS, and SCHOELEN, Judges.

O R D E R

Before the Court is Rufus Z. White's December 14, 2004, application pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), for an award of attorney fees and expenses in

the amount of $4,930.91. The EAJA application was filed on Mr. White's behalf by his attorney,

Hugh D. Cox, Jr. On January 10, 2005, the Secretary filed an unopposed motion for an extension

of time until January 25, 2005, to file a response to the EAJA application. The Clerk of the Court

granted that motion on the following day. On January 25, 2005, the Secretary filed a response to the

EAJA application in which he concedes that Mr. White is entitled to an EAJA award and contests

only $100.00 sought by Mr. White for a "storage-filing maintenance fee." Mr. White has filed a

reply to that response. For the reasons that follow, the Court will grant Mr. White's EAJA

application with the exception of the $100.00 sought for storage-filing maintenance.

The Court has jurisdiction pursuant to 28 U.S.C. § 2412(d)(2)(F) to award reasonable

attorney fees and expenses. In this case, Mr. White filed his EAJA application within the 30-day

time period set forth in 28 U.S.C. § 2412(d)(1)(B) and his application satisfies that section's content

requirements. See Scarborough v. Principi, 541 U.S. 401, 407-08 (2004). The Secretary does not

contest that an award of fees is appropriate in this case. Hence, the Court is left only to determine

the reasonableness of the amount sought. See 28 U.S.C. § 2412(d)(2)(A); Ussery v. Brown, 10

Vet.App. 51, 53 (1997). The burden of demonstrating the reasonableness of the fee request rests

with the appellant, the party applying for the fees. See Blum v. Stenson, 465 U.S. 886, 897 (1984).

Section 2412(d)(2)(A) provides that "'fees and other expenses'" recoverable under the EAJA

"includes . . . reasonable expenses . . . found by the court to be necessary for the preparation of the

party's case." 28 U.S.C. § 2412(d)(2)(A). Interpreting that section, this Court has held that it has

discretion to award "expenses 'customarily charged to the client where the case is tried"' and that it

will not award expenses for "equipment-maintenance and overhead items" because such expenses

"would not normally be billed to a client." March v. Brown, 7 Vet.App. 163, 169-70 (1994) (quoting

Oliveira v. U.S., 827 F.2d 735, 744 (Fed. Cir. 1987)). Finally, because it is pertinent to the instant

matter, the Court notes that Rule 37(a)(1) of the Court's Rules of Practice and Procedure (Rules),
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entitled "Contingency Planning," provides in part that "[w]hen [an] appellant . . . is represented, the

representative must retain copies of the record on appeal and all papers filed with the Court by the

parties or any intervenor or amicus curiae and of all actions issued by the Court." U.S. VET. APP.

R. 37(a)(1) (emphasis added). Rule 37(b), in turn, provides that such copies "will be retained for not

less than one year after all proceedings, including those concerning attorney fees and expenses . . .

are concluded." U.S. VET. APP. R. 37(b). 

Here, attorney Cox, on Mr. White's behalf, requests a total EAJA award of $4,930.91;

$4,775.25 in fees for attorney Cox's services and $155.66 in expenses. EAJA Application at 6-7.

The $155.66 in expenses requested includes (1) $20.00 for telephone calls and fax transmissions,

(2) $35.66 in delivery costs, and (3) $100.00 for "[s]torage-filing-maintenance per Rule 37[,]

estimated cost of one year's maintenance." Id. at 7. The Secretary, in his response, contends only

that the total fee awarded should be reduced by the $100.00 storage-filing maintenance fee.

Secretary's Response at 2, 4-5. Specifically, he argues that storage-filing maintenance fees "are costs

that are not customarily charged to the client" and are "much like fees paid by an attorney for

maintaining office space and should be considered as part of an attorney's hourly fee." Id. at 4. He

also argues that Mr. White has "merely alleged that he is entitled to such a fee" but has not specified

"the amount of the rent that is necessary to store a 575[-]page record or the square footage of the

storage facility involved, much less the necessity of renting a storage facility for the storage of such

a small record." Id. at 2. Attorney Cox, on Mr. White's behalf, filed a reply to the Secretary's

response in which he advances a difficult-to-comprehend argument to the effect that, although he

did not oppose the Secretary's January 10, 2005, motion for an extension of time, the Court should

strike the Secretary's response to his EAJA application because the requirement that the Secretary

file an opposition within 30 days "is jurisdictional." Appellant's Reply at 3. He further asserts that

he "deeply regrets that he did not know that his position not opposing the Secretary's [m]otion for

an [e]xtension of [t]ime could not be waived since the Court's Rules do not allow such an extension."

Id. at 5. Next, he contends that Rule 37 of the Court's Rules of Practice and Procedure "increases

the attorney's cost beyond normal 'overhead."' Id. at 7. He further contends that he "now pays the

amount of $50 per month to Arlington Mr. Store It Mini Storage . . . to store legal records when

retired" and that "[m]ost of this storage is taken up by veteran's cases." Finally, he asserts that he

"has paid this amount since approximately February 1998" and that "[t]he estimate is that Rule 37

would cost approximately $100.00 per year extra." Id. 

As an initial matter, the Court notes that attorney Cox's argument that the Court should strike

the Secretary's response to his EAJA application because the requirement that the Secretary file an

opposition within 30 days "is jurisdictional" is entirely without merit. Appellant's Reply at 3. The

U.S. Supreme Court has stated that even the EAJA's "30-day deadline for fee applications and its

application-contentspecifications are not properly typed 'jurisdictional."' Scarborough, 541 U.S. at

413. In addition, theCourt fails to understand how the Secretary's response to the EAJA application,

whether filed in a timely manner or not, is in any way relevant to the question of the Court's

jurisdiction over the matter. Finally, contrary to attorney Cox's assertion, the Court has discretion

to extend the 30-day period set by Rule 39(b) during which the Secretary must file a response to an

EAJA application. See U.S. VET. APP. R. 26(b) ("The Court, on its own initiative or on a party's
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motion for good cause shown, may extend the time set by these rules for doing any act . . . but . . .

may not extend the time for filing a Notice of Appeal or an application for attorney fees and

expenses."). For the reasons set forth below, the Court agrees with the Secretary and will deny the

$100.00 requested for storage maintenance. 

First, pursuant to section 2412(d)(2)(A), only "reasonable expenses . . . found by the court

to be necessary for the preparation of the party's case" are recoverable under the EAJA. 28 U.S.C.

§ 2412(d)(2)(A) (emphasis added). In addition, as stated above, Rule 37 of the Court's Rules of

Practice and Procedure mandates the storage of records for at least one year after all proceedings

before the Court, including those concerning the EAJA application, have been concluded. See U.S.

VET. APP. R. 37(b) (emphasis added). As a matter of course, we would assume, and attorney Cox

does not contend otherwise, that an attorneywouldmaintain recordsrelating to a case while that case

is still pending before the Court. In fact, attorney Cox argues only for recovery under the EAJA of

the expense incurred as a result of Rule 37(b)'s requirement that he maintain the records in this case

for at least one year after all proceedings before the Court have been concluded. See EAJA

Application at 7. Because proceedings in this case have not yet been concluded, attorney Cox has

incurred no additional expense as a direct result of Rule 37(b). Such an expense, if incurred at all,

will be incurred only after all proceedings before the Court have been concluded. As a consequence,

expenses incurred as a result of compliance with Rule 37 do not appear to constitute expenses that

are "necessary for the preparation of the party's case." 28 U.S.C. § 2412(d)(2)(A). Second, attorney

Cox has not demonstrated, let alone argued, that such an expense is of a type that is ordinarily billed

to a client. See March, 7 Vet.App. at 169-70. Indeed, in our view, the rental of additional storage

space to accommodate the maintenance of records, whether required by rule or not, is a cost more

appropriately characterized as an unrecoverable overhead expense than as an expense that would

normally be paid by the client. Finally, attorney Cox's claim for $100.00 as an expense for storagefile maintenance is vague and unsupported. Attorney Cox states that he "now pays $50.00 per month

to . . . store legal records when retired" and that "[m]ost of this storage is taken up by veteran's

cases." Appellant's Reply at 7. Additionally, he asserts that "Rule 37 would cost approximately

$100.00 per year extra." Id. It is unclear from attorney Cox's pleadings whether the $100.00 that

he seeks in expenses represents the cost of complying with the Rule in all cases in which he

represents appellants before the Court or the cost of complying with the Rule in the instant case

alone. If it is the former, then the $100.00 is unrecoverable because it is not an expense "incurred

or expended solely or exclusively in connection with the case before the court." March, 7 Vet.App.

at 169 (quoting Oliveira, 827 F.2d at 744). If it is the latter, then the expense is unreasonable. Id.

In that regard, we note that it strains logic to accept that the cost associated with storing the relatively

small record in this case is $100.00 per year, considering that attorney Cox's total cost for storing

"legal records" in "veteran's cases" amounts to less than $600.00 per year. See Appellant's Reply

at 7 (stating that "counsel now pays . . . $50.00 per month . . . to store legal records when retired" and

"[m]ost of this storage is taken up by veteran's cases");see also Secretary's Response at 2 (noting that

this appeal involved a "575[-] page record" on appeal).

On consideration of the foregoing, it is 
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ORDERED that Mr. White's December 14, 2004, EAJA application is GRANTED in

substantial part. Mr. White is awarded a total of $4,830.91 in attorney fees and expenses.

DATED: July 5, 2005 PER CURIAM.