Judge Holdaway participated in the decision on the merits in this case, but retired before the decision

*

could be issued.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-691

ALBERT L. WILSON , APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Application for Attorney Fees and Expenses

(Argued May 15, 2002 Decided December 12, 2002 )

Barton F. Stichman, with whom James W. Stewart (non-attorney practitioner), was on the

brief, both of Washington, D.C., for the appellant.

Erica M. Dornberg, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Acting Assistant General Counsel; and Darryl A. Joe, Acting Deputy Assistant General Counsel,

were on the brief, all of Washington, D.C., for the appellee.

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

*

IVERS, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a concurring

opinion. KRAMER, Chief Judge, filed a dissenting opinion.

IVERS, Judge: Before the Court is appellant's application, through counsel, for an award

of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA). 28 U.S.C. §

2412. Appellant is eligible for EAJA fees. The only issue before the Court is what is to be the

hourly billing rate for the non-attorney practitioner who assisted the attorney with the case.

Appellant seeks $120 per hour for the non-attorney practitioner while the Secretary argues that the

appropriate rate should be $90 per hour. For the reasons set forth below, the Court finds that, based

on the evidence presented in this case, $90 per hour is a reasonable rate for the non-attorney
2

practitioner. 

I. FACTS

On January 17, 2001, the Board of Veterans Appeals (Board or BVA) denied the appellant's

claim for an increased rating for residual injury from a gun shot wound to the right shoulder,

evaluated as 40% disabling. On April 18, 2001, the appellant filed a timely appeal. A joint motion

to remand was filed on August 28, 2001. On September 4, 2001, the Court granted the motion and

vacated the January 2001 Board decision. On October 4, 2001, the appellant filed an EAJA

application. On October 25, 2001, the Secretary, acknowledging that EAJA fees were warranted,

filed a response opposing the amount of the fees requested. The Secretary took issue only with the

hourly rate sought for the non-attorney practitioner. On December 4, 2001, the appellant filed a

reply to the Secretary's opposition. Oral argument took place on May 15, 2002. 

A. Appellant's Evidence

Appellant submitted four affidavits regarding prevailing market rates. In the first affidavit,

David Addlestone, of the National Veterans Legal Services Program (NVLSP), asserted that a

member of the law firm of Miller & Chevalier stated that it bills its most experienced paralegals at

the hourly rate of $125 to $130 per hour. Addlestone Decl. at 1. In the second affidavit, Brian

Busey, managing partner of the Washington, D.C. Office of Morrison & Foerster, said that his firm

charges between $80 and $175 per hour for legal assistants in Washington, D.C., depending on their

level of experience. Busey Decl. at 1. In the third affidavit, Stanley Lechner, a partner in the

Washington, D.C., Office of Morgan, Lewis & Bockius, said that his "firm's hourly billing rates for

experienced legal assistants in litigation in the Washington office are approximately $125 for legal

assistance [sic] with approximately five years of experience." Lechner Decl. at 1. In the fourth

affidavit, Ronald Flagg, a partner at Sidley & Austin, stated that his "firm's hourly billing rates for

experienced legal assistants in Washington are in the range of $130-155, and at the hourly rate of

$100 for entry-level legal assistants." Flagg Decl. at 1. 

In the first affidavit, Addlestone also made reference to a survey he had taken regarding

billing rates in Washington, D.C., that, he says, "included more than four [those mentioned above]

law firms." Reply Brief (Br.) at 6 n.1. However, he did not include the names of firms or number

of survey participants. He simply concluded that the "prevailing market rate charged by ... District

of Columbia law firms for senior paralegals assisting in federal court litigation exceeds $120 per
3

hour" and pointed out that such charges could be as high as $250 per hour. Addlestone Decl. at 2.

The appellant has presented substantial evidence of Mr. Stewart's experience in the field of

veterans law, including a declaration that he worked for the Disabled American Veterans for 25

years in various positions of responsibility, that he has practiced before the Court as a non-attorney

practitioner since 1995, having represented over 200 veterans in that time, that he has participated

in preparing newsletters and a report related to veterans law issues, and that he has trained attorneys

and non-attorneys in veterans law issues at several seminars. The Court does not doubt Mr.

Stewart's considerable expertise and contributions in the field of veterans law; indeed, he may very

well be more qualified and competent than many non-attorney practitioners who appear before the

Court. Non-attorney practitioners are authorized to practice before this Court if they (1)

work under the direct supervision of a bar-admitted attorney, or (2) are employed by an organization

chartered by Congress and recognized by the Secretary of Veterans Affairs. U.S. VET. APP. R.

46(b). The Court is "unable to distinguish" between a supervised non-attorney practitioner pursuant

to Rule 46(b)(1), as is the case here, and any other supervised non-attorney such as a law student,

clerk, or paralegal. McCracken v. Principi, 14 Vet.App. 269, 271 (2001). 

B. Secretary's Evidence

The Secretary submitted the Laffey Matrix as evidence of prevailing market rates for this

jurisdiction. "The Laffey Matrix was established, and is updated, by the U.S. Department of Justice,

to reflect the prevailing market rate for attorneys by years of practice, pursuant to Laffey v.

Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part by 746 F.2d 4 (D.C. Cir.

1984), cert. denied, 472 U.S. 1021 (1985), overruled in part on other grounds by Save Our

Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir.1988)(en banc)." Covington v. District

of Columbia, 313 U.S. App. D.C. 16, 57 F.3d 1101 (D.C. Cir. 1995). The matrix is "somewhat

crude," but it does provide a "useful starting point" for determining fees. Id. The matrix provides

a framework for attorney and non-attorney compensation for the relevant jurisdiction, while taking

into account annual price increases. The United States Court of Appeals for the D.C. Circuit has

corroborated its reliability by voicing approval of the matrix. See Covington at 1105. The appellant

contends that the Laffey Matrix has "attenuated probative value" because it does not consider "the

individual's skill, experience, and reputation." Reply Br. at 8. 

The Secretary initially submitted the matrix as an errata page on May 7, 2002, one week
4

before oral argument. At oral argument, the Court advised the Secretary that the matrix would be

more properly submitted as an addendum (rather than an errata). Subsequently, the Secretary filed

an opposed motion for leave to file an addendum on May 17, 2002 (two days after oral argument).

The Secretary's motion is granted. The Secretary's addendum contained a copy of the updated

Laffey Matrix and a declaration from Daniel Van Horn of the United States Attorney's Office,

asserting the reliability of the matrix. Van Horn Decl. at 2. 

II. ANALYSIS

The issue in this case is what is a reasonable hourly rate for the appellant's supervised nonattorney practitioner. For the reasons that follow, we find that, based on the evidence submitted in

this case, $90 per hour is a reasonable hourly rate for the non-attorney practitioner. The Laffey

Matrix hourly rate was $90 per hour when the appellant began the legal work in question.

The Secretary concedes that the appellant in the present case has met the requirements for

an EAJA award. The appellant is a prevailing party, the Secretary's position was not substantially

justified, and there are no special circumstances that would make an EAJA award unjust in this case.

Elcyzyn v. Brown, 7 Vet.App. 170, 174 (1994). Also, as required, the appellant has submitted a

statement that his net worth does not exceed $2 million, and he has submitted an itemized billing

statement with his application.

"Once it is determined that a claimant is entitled to an EAJA award, the Court still must

determine what is a reasonable fee." Ussery v. Brown, 10 Vet.App. 51, 53 (1997). The Court can

determine a reasonable fee by calculating the "number of hours reasonably spent on the litigation

multiplied by a reasonable hourly rate." Elcyzyn, 7 Vet.App. at 177. 

The amount of fees awarded ... shall be based upon prevailing market rates for the

kind and quality of the services furnished, except that ... attorney fees shall not be

awarded in excess of $125/hour unless the court determines that an increase in the

cost of living or a special factor, such as the limited availability of qualified attorneys

for the proceedings involved, justifies a higher fee. 

28 U.S.C. § 2412(d)(2)(A). That is, the prevailing market rate is the appropriate rate for attorney

fees, up to the statutory maximum. Paralegals and other non-attorneys are entitled to the "lower of

either the prevailing market rate" or the statutory rate of $125 per hour. Elcyzyn, 7 Vet.App. at 181.
5

Contrary to what the dissent asserts regarding whether or not the prevailing market rate or the

statutory rate may be supplemented by a cost-of-living allowance (COLA), our reviewing court, the

United States Court of Appeals for the Federal Circuit, does not recognize a COLA for nonattorneys, as it does for licensed attorneys. Levernier Constr., Inc. v. United States, 947 F.2d 497,

503 (Fed. Cir. 1991). Moreover, it is important to note here that, not only do non-attorneys not

warrant a COLA, they do not warrant any compensation at all pursuant to the language of the EAJA

statute. We do not believe that the dissent adequately considers this fact.

The Secretary concedes that the appellant's EAJA application reflects a reasonable number

of hours. As to the hourly rate, both parties agree that the prevailing market rate should be awarded

in this situation. However, both parties dispute what that rate is. The applicant bears the burden of

demonstrating that the rate requested is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

"Once [he] has presented evidence to establish that prevailing market rate, the opposing party has

the burden of producing evidence to demonstrate that that market rate is incorrect." Sandoval v.

Brown, 9 Vet.App. 177, 181 (1996). Not only has the Secretary shown "that the market rate is

incorrect," the appellant has also failed to sustain his burden to establish a proper rate. The appellant

submitted a survey, and affidavits regarding both billing rates and the non-attorney's experience, as

evidence of the prevailing market rate for non-attorneys. He submitted affidavits for only four firms,

and included no details regarding the content of the cited survey. Nevertheless, the appellant asserts

that this evidence is sufficient to establish, prima facie, that the fees sought were reasonable, in

accordance with Willis v. U.S. Postal Service, 245 F.3d 1333 (Fed. Cir. 2001). The appellant's

affidavits were made in contemplation of a case (Nehmer v. U.S. Dep't of Veterans Affairs, 32 F.

Supp. 2d 1175 (N.D. CA 1999)) which "involved complex class action trial litigation in a Federal

District Court" and is not "comparable to an appeal in this Court involving a single appellant, a

single well-defined issue, and pre-record resolution." Secretary's Br. at 8. Furthermore, Willis is

not applicable here because that case did not concern EAJA, did not involve practice before this

Court, and most importantly, did not concern fees for non-attorney practitioners. We believe that

the evidence proffered by the appellant is probative only as to the rate charged for paralegal services

by the four firms mentioned by the appellant. It is not, however, sufficiently probative to provide

prima facie evidence of the prevailing market rate or what should be the rate for non-attorney

practitioners who practice before this Court. 
6

Finally, the appellant asserts that during the past year, on eight separate occasions, the Court

accepted appellant's request for $120 per hour for the non-attorney practitioner's services. Reply Br.

at 6. In those cases, the Court did order that the fees be paid. Reply Br., Exhibit A, 1-8. In each

of the eight cases, the Secretary did not contest the application, and fees were awarded. In this case,

the Secretary is contesting the application.

To repeat, the Court "must determine what is a reasonable fee" in an EAJA case. Ussery,

10 Vet.App. at 53. In doing so, the Court considers the submissions of both parties and finds that

the Laffey Matrix, proffered by the Secretary, is a reliable indicator of fees and is far more indicative

of the prevailing market rate in the jurisdiction, particularly as to cases involving fees to be paid by

government entities or determined under fee-shifting statutes, than the evidence submitted by the

appellant. The Matrix provides a formula, which is simply and usefully constructed, it is applicable

to cases in the jurisdiction, and it is commonly used, while the appellant's only evidence is four

examples, made in the context of complex litigation unlike any before this Court.

"EAJA is a limited waiver of sovereign immunity." Cook v. Brown, 68 F.3d 447, 450 (1995).

It "lifts the bar of sovereign immunity for award of fees in suits brought by litigants qualifying under

the statute, but does so only to the extent explicitly and unequivocally provided." Id. In Cook, the

United States Court of Appeals for the Federal Circuit held that, under the EAJA, unsupervised nonattorneys admitted to practice before this Court do not merit awards of attorney fees. "Lawyers, as

members of a profession, are paid for their expertise and experience gained from years studying in

an accredited law school, passing the bar exam, and practicing law." March v. Brown, No. 95-7032,

1996 U.S App. LEXIS 973, at *3 (Fed. Cir. Jan. 19, 1996). A non-attorney "may perform the same

elements of client representation as a lawyer and operate under the same procedural and ethical rules

before the Court of Veterans Appeals" but this does not make him an attorney for EAJA purposes.

Cook, 68 F.3d at 451. Also, "Congress understood attorney fees to mean fees for representation by

persons who are qualified generally to appear as a legal representative in any administrative or

judicial proceeding, presumably by virtue of their formal training and licensure in the general

practice of law." Id. Clearly there are distinctions between the value of attorney and non-attorney

work. For example, EAJA fees are only awarded for attorney-supervised work. Cook 68 F.3d at

450. Even the appellant doesn't seek the same hourly rate for the non-attorney as he does for the

attorney. No matter how much experience a non-attorney has, he still lacks the training and
7

credentials necessary to be a licensed attorney.

The Court has "wide discretion" in the award of EAJA fees. Chesser v. West, 11 Vet.App.

497, 501 (1998). The two important limitations on that discretion are the EAJA statutory cap of

$125 per hour for attorneys and the requirement that fee awards be "reasonable." 28 U.S.C. §

2412(b). If the Court must award reasonable fees, it may not award unreasonable fees. We believe

that it is unreasonable to award fees to non-attorneys equal to, or almost equal to, attorney fees. 

For attorneys "the EAJA authorizes the award of the lower of either the prevailing market

rate or [$125] per hour plus a COLA or other enhancement." Elcyzyn v. Brown, 7 Vet.App. at 181;

see also McCracken and Sandoval, both supra. "Though the EAJA mentions only attorney fees,

courts have ruled that work done by attorney-supervised paralegals and law students falls under the

EAJA." Sandoval, 9 Vet.App. at 181. Presently, paralegals and other non-attorneys are entitled

to the "lower of either the prevailing market rate" or the statutory rate of $125 per hour, Elcyzyn, 7

Vet.App. at 181, so that they may potentially receive the same fees as attorneys. Awarding EAJA

fees for non-attorneys raises the important question of whether attorneys and non-attorneys should

be compensated at the same rate. We believe they should not. In addition to the professional

training discussed above, attorneys, as a general rule, simply earn substantially more than nonattorneys. One need only look at prevailing market rates to see that. The Laffey Matrix, submitted

by the Secretary, shows that attorneys can earn more than four times what non-attorneys earn. The

appellant has not submitted evidence showing attorney earnings, but we are confident that he could

not produce any figures for non-attorneys (such as paralegals, legal assistants, or law students) that

exceed those for attorneys. We believe that the $90 per hour rate for non-attorneys shown in the

Laffey Matrix is, as we have pointed out, reasonable. 

The appellant argues, and the dissent agrees, that the non-attorney's experience or expertise

should be considered in calculating a reasonable fee. However, nothing in the EAJA statute requires

that experience be considered in calculating a reasonable fee. Also, notably, the Laffey Matrix

considers experience for attorneys but not for non-attorneys. Furthermore, experience obviously

cannot be considered in calculating reasonable EAJA fees when the prevailing market rate would

be more than the statutory rate of $125 per hour, as is often the case. The Court does not dispute

that the non-attorney in this case has valuable experience, but that does not bear on our ability to

award fees. We do not feel compelled to award the same compensation to non-attorneys as we do
8

to attorneys. 

The dissent asserts that the Court must decide on a "case-by-case basis" what would be a

"reasonable" fee. See Blum v. Stenson, 465 U.S. 886, 894-96 (1984). In our many EAJA decisions,

this Court has in fact considered, on a case-by-case basis, whether or not to include or exclude

certain hours claimed based on whether or not we deemed them reasonable. However, in deciding

the issue of what is a reasonable hourly rate for attorneys, generally the statutory maximum is

awarded. Thus, in those cases, there is no "case-by-case determination" of reasonable hourly rates

–the applicant simply receives the statutory rate. The determination as to reasonableness goes to the

total bill.

As stated above, non-attorneys must be supervised by attorneys to receive EAJA fees. Cook,

68 F.3d at 450. Courts, including the Supreme Court, "have approved the inclusion of fees for

paralegals, law clerks, and law students, in fee awards under EAJA or analogous fee-shifting

statutes, on the theory that their work contributed to their supervising attorney's work product." Id.

at 452 (emphasis added). In this case, the non-attorney work is considered supervised, although the

attorney spent a total of one half-hour supervising this litigation. The non-attorney more than

contributed to the supervising attorney's efforts, he appears to have done the bulk of the

representation himself. This point is not crucial here, but it is worth pointing out how close the

present appellant, and perhaps others, comes to being uncompensated. But for the attorney's one

half-hour of supervision, this would be an unsupervised, and thus uncompensated representation.

Although it may be within our discretion to create a cap for non-attorney EAJA fees that is

lower than that for attorneys, provided of course, that the cap is "reasonable," it is not our intent to

do so now. Imposition of a cap on the rate to be paid for supervised non-attorney representation

would certainly help lower litigation costs and provide a simpler standard for EAJA awards. One

of the advantages cited in allowing compensation for non-attorney work was that the work "could

be done effectively by non-attorneys under supervision for a lower rate, thereby lowering overall

litigation costs." Cook, 68 F.3d at 452. A lower cap would provide a simple standard for nonattorney EAJA compensation in the future and eliminate much of the debate over the particular

details of each individual case that could end up needlessly delaying judgment. Generally, attorneys

are awarded EAJA fees at the statutory rate and there is no further discussion of the hourly rate. A

cap on fees for non-attorneys could have the same effect, thus helping to conserve judicial resources.
9

 III. CONCLUSION

Accordingly, upon consideration of the pleadings filed for this appeal, and for the reasons

stated herein, the appellant's EAJA application is GRANTED. He is awarded $22.36 for expenses;

he is awarded $70.48 for .5 hours at $140.95 per hour for attorney fees; and he is awarded $1,215

for non-attorney practitioner fees for 13.5 hours at $90 per hour, for a total of $1307.84. 

HOLDAWAY, Judge, concurring: I write separately in the present case simply to emphasize

a point alluded to in the principal opinion.

It is significant to note that the Court does not apply a sliding scale of billing rates even to

attorneys seeking EAJA fees before the Court based on his or her level of experience or expertise.

The Court routinely sets the billing rate for attorneys granted fees under the EAJA at the statutory

rate of $125 per hour. The relevance of the level of experience of any particular attorney who seeks

EAJA fees from the Court is useful only in considering the reasonableness of the number of hours

for which compensation is sought. See, e.g. Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983);

Ussery v. Brown, 10 Vet.App. 51, 53 (1997). As experience is not a factor in determining the billing

rate of attorneys seeking compensation under the EAJA, it is likewise inappropriate to consider

experience in determining the billing rate of non-attorney practitioners. Further, setting a single

billing rate for non-attorney practitioners provides consistency and prevents the squandering of

valuable judicial resources, which would occur were the Court to allow parties repeatedly to litigate

the issue of the appropriate rate for every non-attorney practitioner seeking fees from the Court.

Assuming that each individual has relatively different expertise, it could lead to the absurdity of

having a different billing rate for each and every non-attorney practitioner.

KRAMER, Chief Judge, dissenting: I disagree with the majority's holding that an hourly rate

of $90 for fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), for the

supervised non-attorney practitioner is reasonable based on the evidence presented here. In addition,

I disagree with the majority's statement that this Court has the authority to impose a cap – lower than

the $125 statutory cap – on the EAJA hourly rate for all non-attorneys in all cases, because such a

restriction is contrary to the statutory command of Congress and to the controlling caselaw.

As to the majority's $90-hourly-rate holding, the appellant requests a rate of $120 per hour
10

for work done by his attorney-supervised non-attorney practitioner. Therefore, the statutory rate cap

of $125 is not at issue, and the question before the Court is what is the "prevailing market rate[] for

the kind and quality of the services furnished," 28 U.S.C. § 2412(d)(2)(A). The appellant must

present evidence to establish that the rate requested, here $120 per hour, is the prevailing market rate

for this non-attorney practitioner. See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); Willis

v. United States Postal Serv., 245 F.3d 1333, 1337-40 (Fed. Cir. 2001); Raney v. Fed. Bureau of

Prisons, 222 F.3d 927, 938 (Fed. Cir. 2000) (en banc); Sandoval v. Brown, 9 Vet.App. 177, 181

(1996); see also Covington v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995). If the

appellant does so, the Secretary has the burden to produce evidence that demonstrates that that

prevailing market rate is incorrect. See Willis, 245 F.3d at 1340-41; Sandoval, 9 Vet.App. at 181;

see also Covington, 57 F.3d at 1109-10. If, in the end, the Court does not have before it adequate

evidence of a prevailing market rate, the Court may, in its discretion, use other relevant factors,

including its own judgment, to determine the prevailing market rate in regard to a particular case.

See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir. 1998).

In this regard, the appellant presented evidence as to the hourly rate for litigation paralegals

at four law firms that appear to be among the largest in the Washington, D.C., area and a statement

as to the hourly rate at other unnamed law firms. This evidence does not necessarily reflect the

prevailing market rate, in terms of an average or median rate for litigation paralegals in the area, but

it does demonstrate that the high end of an hourly rate for paralegals can be in excess of the $125

statutory cap. Moreover, the appellant has provided significant evidence of the extensive experience

and expertise of the non-attorney practitioner in this case. See EAJA Application, Exhibit D. In

addition, I note that, pursuant to Rule 46(b), (d)(3) of this Court's Rules of Practice and Procedure,

the capabilities of a non-attorney practitioner admitted to practice before this Court exceed the

capabilities of a litigation paralegal. For example, the non-attorney practitioner in this case would

be able to present oral argument to this Court, whereas a litigation paralegal could not. Finally, the

appellant has presented specific evidence consisting of eight EAJA cases where the Secretary agreed

to pay $120 per hour for work done by the same non-attorney practitioner who provided services

in this case. See Dec. 4, 2001, Reply, Exhibits A, 1-8.

Accordingly, I would conclude that the appellant has presented significant evidence to

demonstrate that the "prevailing market rate[] for the kind and quality of the services furnished,"
11

28 U.S.C. § 2412(d)(2)(A), by this non-attorney practitioner is in excess of $90 per hour. See Willis,

245 F.3d at 1338-42. The evidentiary burden would thus shift to the Secretary. See Sandoval,

9 Vet.App. at 181. In response to that burden, the Secretary has belatedly provided the Laffey

Matrix, see Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371-75 (D.D.C. 1983), rev'd in part,

746 F.2d 4 (D.C. Cir. 1984), overruled in part by Save Our Cumberland Mountains v. Hodel,

857 F.2d 1516, 1524-25 (D.C. Cir. 1988). Although the majority has stated that its hourly-rate

determination is based on the evidence presented in this case, see ante at __, slip op. at 1, 4, the

determination was not based on all the evidence but only on the Laffey Matrix, which, as explained

below, is problematic at best.

As to the majority's embracing this matrix as conclusive of its $90 analysis, I offer the

following: First, the Laffey Matrix is "somewhat crude" and can only provide a useful starting point

for this Court's analysis. Covington, 57 F.3d at 1109. Second, it is an internal document created by

the Office of the United States Attorney for the District of Columbia (May 17, 2002, Addendum,

Attachment B) and provides the hourly rate that that office would prefer to pay, presumably in order

to control the costs of litigation in which it is the losing party. Third, it does not take into account

"the kind and quality of the services furnished," 28 U.S.C. § 2412(d)(2)(A), by the non-attorney

practitioner in this case, see EAJA Application, Exhibit D (statement regarding experience and

expertise of James W. Stewart). See Blum, 465 U.S. at 895 n.11 (holding that prevailing market rate

is based on rates prevailing in community for similar services by lawyers of reasonably comparable

skill, experience, and reputation); Willis, 245 F.3d at 1340; Raney, 222 F.3d at 938; see also

Missouri v. Jenkins, 491 U.S. 274, 286 (1989); Covington, 57 F.3d at 1107, 1108. In that regard and

in response to the concurring statement, I note that this Court does, in fact, consider attorney

experience and expertise in two circumstances: (1) Where the "prevailing market rate[] for the kind

and quality of services furnished" is below the $125 statutory cap, 28 U.S.C. § 2412(d)(2)(A); see

Blum, 465 U.S. at 895 n.11; Elcyzyn v. Brown, 7 Vet.App. 170, 178-82 (1994); and (2) when the

appellant has requested an increase in the statutory cap based on a special factor, see Pierce

v. Underwood, 487 U.S. 522, 572 (1988). Fourth, according to the Laffey Matrix itself, the hourly

rate has risen from $90 (for June 2000 through May 2001) to $95 (for June 2001 through May 2002).

May 17, 2002, Addendum, Attachment B. The Secretary requests and the majority employs the $90

per hour rate, although most of the work (10.25 hours out of 13.25 hours) was done after May 2001.
12

It seems to me that, even under the majority's analysis, that post-May 2001 work would qualify for

the $95 per hour rate.

Moreover, I note that, although the majority states, purportedly based on Levernier Constr.,

Inc. v. United States, that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) "does

not recognize a cost of living [increase] for non-attorneys, as it does for licensed attorneys," ante

at __, slip op. at 5, a thorough reading of Levernier discloses that the Federal Circuit actually held

that a cost-of-living increase cannot be added to the prevailing market rate for either attorneys or

paralegals, Levernier, 947 F.2d 497, 498, 503-04 (Fed. Cir. 1991). That holding is consistent with

the statute and the caselaw that allows a cost-of-living increase to be added only to the statutory cap.

Obviously, a prevailing market rate is just that, and it would be a non sequitur to add a cost-of-living

increase to it. Under the majority's interpretation of Levernier, in essence, fees may be awarded via

the EAJA for work done by non-attorneys but not according to the EAJA criteria that require the

Court to choose the lower of either the prevailing market rate or the statutory cap (with the

possibility of a cost-of-living or special-factor increase), see Pierce and Levernier, both supra;

McCracken v. Principi, 14 Vet.App. 269, 271-72 (2001); Sandoval, supra.

As to any possible cap – lower than the $125 statutory cap – on the hourly rate for nonattorneys, I agree that this "Court has wide discretion in the award of attorney fees under the EAJA,"

Chesser v. West, 11 Vet.App. 497, 501 (1998); that discretion, however, is not unfettered.

Specifically, the Court must give effect to the plain meaning of the statute, Gardner v. Derwinski,

1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993),

aff'd, 513 U.S. 115 (1994), and must comply with the controlling caselaw, both of which clearly

support the proposition that "reasonable attorney fees" as applied to non-attorneys (other than expert

witnesses, see 28 U.S.C. § 2412(d)(2)(A)(i)) are calculated using either the prevailing market rate

or the $125 statutory cap plus a cost-of-living or special-factor increase. 28 U.S.C. § 2412(d)(2)(A)

("reasonable attorney fees . . . shall be based upon prevailing market rates for the kind and quality

of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 per

hour unless the court determines that an increase in the cost of living or a special factor . . . justifies

a higher fee"); see Pierce, 487 U.S. at 571 (holding that hourly rate is based on prevailing market

rate but shall not be more than statutory cap plus cost-of-living or special-factor increase);

Levernier, 947 F.2d at 498, 503-04 (holding that hourly rate for attorneys and paralegals is
13

prevailing market rate or statutory rate of $75 (now $125) per hour plus cost of living or special

factor increase, whichever is lower); McCracken, 14 Vet.App. at 271-72 (holding that hourly rate

for attorney-supervised non-attorneys is lower of (1) prevailing market rate or (2) statutory cap of

$125 plus appropriate Consumer Price Index); Sandoval, 9 Vet.App. at 181 (same).

In addition, the Court must decide the question of the reasonableness of the hourly rate

based on the evidence presented by the parties in the case before it. See Blum, 465 U.S. at 894-96

and 895 n.11; Raney, 222 F.3d at 938; Sandoval, 9 Vet.App. at 181. Thus, any universal restriction

on the calculation of the prevailing market rate for non-attorneys is contrary to both statute and

caselaw. See 28 U.S.C. § 2412(d)(2)(A); Blum, Pierce, Raney, Levernier, McCracken, Sandoval,

and Gardner v. Derwinski, all supra. Admittedly, it would be easier for the Court to have a standard

hourly rate to apply in all cases; however, the desire for such an expediency here leads the majority

to suggest that it could amend a statute with which it apparently disagrees. This would be judicial

activism, not necessary to the consideration of any application, at its most obvious.

In sum, because I disagree with the majority's conclusion that $90 is a reasonable rate based

on the evidence presented here and its statement that the Court has the authority to impose a cap –

lower than the $125 statutory cap – on the hourly rate for non-attorneys in all cases, I dissent.