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Smith v. McDonough, Secretary of Veterans Affairs

This appeal arose from a decision of the Court of Appeals for Veterans Claims (CAVC) regarding an award of attorney fees to a prevailing party in a case seeking veterans benefits. The CAVC discounted by one-third the time that counsel spent reviewing the record in the case because his client prevailed on only one of seven claims. In an amicus brief filed on behalf of Public Citizen, the National Veterans Legal Services Program, and the Judge David L. Bazelon Center for Mental Health law, we argued that record-review time should not be discounted for partial success where it was indispensable to prosecution of the successful claim. The amicus brief urged the Federal Circuit to reiterate that all hours reasonably spent reviewing the record are presumptively compensable where the party prevails on any claim. To hold otherwise would be contrary to the policies on which fee shifting is based, disadvantage people unable to afford the services of private attorneys, and impede the development of the law.

In a decision issued in April 2021, the Federal Circuit fully agreed with our position. The court held that the CAVC’s approach undervalued the importance of the initial review of the case, which is necessary for appellate counsel to determine the bases for an appeal, and was contrary to the purpose and law of the EAJA.