This is pretty funny. Hell, no. It’s a riot. Rarely in the history of Extraordinary Writs have petitioners (me) prevailed on all counts and made off with Monty’s Cookie Jar. It just doesn’t happen. If you asked VA to issue a SOC when they have been extremely recalcitrant about doing so for 3 years, there still is no money that trades hands. Just a long overdue response. The Court and VA have been monolithic in denying EAJA in Writ cases.
Of course, no one has attempted quite what I did in the way I did it. In my case it was SMC S to 1994 and a few new ratings and some CUE clawbacks. The monetary take was over 60-odd thousand and therein lies the rub. If an attorney “substantially prevails” as LawBob Squarepants did and is remunerated at the 20% rate, he has “earned” his EAJA or Equal Access to Justice Act funds. VA has, to date, never paid anything to an attorney for repping a Vet at the CAVC on a Writ. LawBob and I don’t see it that way this time. It cost me personally about $400 and loose change in printing and postage to “writ” this up. I don’t get to charge for my research and cutting edge legal theories. Bob wrote many a new interim filing to clarify the Writ’s thrust and to report substantial compliance for the relief sought as it occurred in real time.
And now it comes time to pay the piper. VA is speechless. 45 days have been begged for and granted to riff madly through Westlaw in search of cites to avoid paying LawBob’s $3900 bucks worth of EAJA. At $59 a minute, Westlaw research adds up. Forty five days of OGC attorneys logged on to Westlaw tearing their hair out looking for a way out of paying. Hell, I’d pay $10 just to read their answer. Fortunately we’ll all get to read it for free but we’ll have to wait until almost Labor day because:
Due to numerous pressing deadlines, additional time is necessary for the completion of review of the [EAJA] application as well as the drafting and review of a response. An additional 45 days are requested for this purpose.
Hundreds of NOVA attorneys, including whoever it is that watches over Gene Groves’ well-being will be waiting for this response. One thing is for certain. Collectively, VA will probably pay over $70,000 in wages on staff attorneys and research in order to avoid an ugly $3,904 EAJA precedent. Such are the ways of the nonadversarial folks down at OGC 027 .