1. Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-1116(E)
DENNIS R. BIRDON, APPELLANT,
v.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
Before the Court is Dennis R. Birdon's April 7, 2015, 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 $11,907.00. The Secretary has filed a response in which he concedes that Mr. Birdon
is a prevailing party and that the Secretary's position was not substantially justified. However, the
Secretary asserts that the amount of fees sought should be reduced because it is unreasonable. For
the reasons that follow, the Court will grant, in part, Mr. Birdon's EAJA application in the amount
of $8,334.90.
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. Birdon filed his EAJA application within the 30-day
time period set forth in 28 U.S.C. § 2412(d)(1)(B). See Scarborough v. Principi, 541 U.S. 401, 408
(2004). The Secretarydoes not contest that an award of fees is appropriate in this case, and the Court
will not find otherwise. Because it is not in question that Mr. Birdon is entitled to an EAJA award,
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). The amount of the
fee must be determined on the facts of each case. See Hensley v. Eckerhart, 461 U.S. 424, 429
(1983). Moreover, the applicant is not necessarily entitled under the EAJA to be compensated for
all time spent on the case. See Ussery, 10 Vet.App. at 53. Indeed, the inquiry does not end once the
applicant has compiled raw totals of hours spent because "[i]t does not follow that the amount of
time actually expended is the amount of time reasonably expended." Copeland v. Marshall,
641 F.2d 880, 891 (D.C. Cir. 1980) (en banc). The Court, in making a determination as to the

2. reasonableness of the fee request, possesses significant discretion. See Chesser v. West, 11 Vet.App.
497, 501 (1998).
"The most useful starting point for determining the amount of a reasonable fee is the number
of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley,
461 U.S. at 433. "The party seeking an award of fees should submit evidence supporting the hours
worked and rates claimed. Where the documentation of hours is inadequate, the [court] may reduce
the award accordingly." Id. For EAJA fees "to be awarded in full, an applicantmust submit evidence
of hours worked in the form of a billing statement that is specific and detailed." Baldridge v.
Nicholson, 19 Vet.App. 227, 235 (2005). "Large blocks of time associated with either many tasks
or a single task with only generalized descriptions such as 'research' or 'conference' are not specific
enough to permit the Court an adequate basis for review and are subject to reduction." Id.
This application derives from Mr. Birdon's appeal of a December 19, 2013, Board of
Veterans' Appeals (Board) decision that denied entitlement to VA disability benefits for headaches
and temporal intracerebral hematoma associated with subarachnoid hemorrhage. On March 5, 2015,
the parties jointlymoved to vacate the December 19, 2013, Board decision and to remandthe matters
to obtain a new examination. On March 9, 2015, the Court granted the parties' motion.
Mr. Birdon requests an EAJA award in the amount of $11,907.00, based on 63 billable hours
billed at a rate of $189 per hour. EAJA Application (App.) at 4. The Secretary argues that the fees1
sought should be reduced because theyare unreasonable. EAJA Response (Resp.) at 5. Specifically,
the Secretary objects to the billing of 49.6 hours for reviewing a 3,072-page claims file, contending
that Mr. Birdon's EAJA application has erroneous, inaccurate, and duplicative entries. Id. at 5-8. For
example, the Secretary asserts that on November 7, 2014, Mr. Birdon billed 120 minutes to review
a 184-page Supplemental Statement of the Case; however, the Supplemental Statement of the Case
is only 11 pages long. Id. at 6. The Secretary also asserts that on November 12, 2014, Mr. Birdon
billed 35 minutes for reviewing a Board decision at pages 1280-1314 of the record; however the
Secretary points out that there is no Board decision located within the pages listed, only a July 2002
rating decision which is only three pages in length. Id. at 8. Finally, the Secretary argues that Mr.
Birdon's applicationincludesbillingforduplicative medical entriesunder the genericlabel"Medical
record." Id. at 6-8. Thus, the Secretary asks the Court to reduce the amount of requested fees "by an
amount it deems appropriate." Id. at 11.
Inhis reply,Mr.Birdonarguesthatwhile"therecordsdid containsomeduplicativerecords[,]
they were not segregated in any way by the Secretary prior to submitting the record to the Court."
EAJA App. Reply at 3. Mr. Birdon further contends that "[the] record was kept in a box for 15 years
and was reviewed repeatedly. The records were mixed, not kept in chronological order, and often
The Court notes that Mr. Birdon's EAJA application states "[t]he undersigned lawyer has expended 48 hours1
in this case (63 hrs. x $189 = $11,907.00)." EAJA App. at 4.The Court is unsure why Mr. Birdon wrote that he expended
48 hours but used 63 hours in his calculation of billable hours. Moreover, Mr. Birdon does not fully explain how he
arrived at the billable rate of $189 per hour. However, because the Secretary does not contest this issue and it does not
appear unreasonable on its face, the Court will not address the issue further.
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3. parts of one record were inserted inside another record." Id. Mr. Birdon states that "[the] key
information was never discovered by any of the lawyers who have reviewed the case before [him]
and was never articulated in any of the legal briefs. To find a needle in a haystack[,] one needs to go
through each strand of hay. Likewise, finding a single page of record in 3,072 pages requires the
record to be reviewed page by page." EAJA App. Reply at 2.
Here, the Court agrees with the Secretary's assertions regarding the lack of reasonableness
of Mr. Birdon's requested EAJA award. Most notably, the Court finds Mr. Birdon's assertion that
49.6 hours of the total 63 requested billable hours were required to review a 3,072-page record is
unreasonable. Moreover, Mr. Birdon, in his reply, failed to respond to several of the Secretary's
assertions regarding the reasonableness of the requested EAJA award beyond stating that the fee
amount requested is reasonable and that "it accuratelyreflects the work performed byall counsel and
. . . eliminated all time that is excessive or redundant." Id. at 4. Accordingly, the Court will reduce
the amount of attorney's fees billed.
In determining the proper amount for the award reduction, "the Court in this case will not
attempt to identify particular hours for disqualification but will exercise judgment and reduce all
billings by an appropriate percentage." Baldridge, 19 Vet.App. at 241. Given the general nature of
Mr. Birdon's EAJA application, the apparent unreasonableness of much of the requested award, his
lack of discernable billing judgment, and his failure to provide substantive responses to some of the
challenges raised bythe Secretary, the Court will use its discretion to reduce the total award by30%.
The total reduction amounts to $3,572.10, resulting in an award of $8,334.90.
The Court places substantial weight on the discrepancies between what Mr. Birdon stated on
his billing entries and the actual documents in the record. Although, under normal circumstances,
the Court will generally not consider the time taken to review the record to be excessive, here, the
number of billable hours Mr. Birdon requests is questionable in light of the other discrepancies, as
identified by the Secretary.
Upon consideration of the foregoing, it is
ORDERED that Mr. Birdon's April 7, 2015, EAJA application is GRANTED, in part, in the
amount of $8,334.90.
DATED: August 3, 2015 BY THE COURT:
/s/ Lawrence B. Hagel
LAWRENCE B. HAGEL
Judge
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4. Copies to:
David Anaise, Esq.
VA General Counsel (027)
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