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HadIt.com Anniversary 24 years on Jan 20, 2021
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Attorney/agent fees and EAJA offset


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Broncovet, In several threads on this forum I have read of your trips to the CAVC with and without attorney representation. I also read about how little you paid because of the EAJA offset that was deducted from your attorney fees. Seems like you caught a break my friend, as that was the way things were back then. As we all know, things change given time, especially things to do with anything VA. The way I see it, today that appeal would cost you $7,000 out of pocket, instead of the $1,000 that you said that you paid after the EAJA offset. Your attorney would have been paid $13,000.00 instead of the $6,000.00.

Unless I have been misinformed, and I fail to comprehend what I read, due to a recent court precedent, Ravin V McDonald, an attorney or agent can now charge reasonable EAJA fees at COVA, and then upon JMR (remand) back to the Board, receive part of the appellant's award, 20%-33% with no EAJA offset. As I understand it, the Court ruled that it was not "same work". If I am comprehending the court case correctly, the only remaining incident for the EAJA offset to occur, is if the Court actually awards the benefit and there is no remand back to the board. The link to the court case is posted below, see what you make of it.

https://www.courtlistener.com/opinion/4602146/ravinv-mcdonald/

If I don't have the facts straight I am sure that someone smarter than myself will chime in to set things straight.

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Interesting point, and Im unqualified to make a "legal opinion".  What I have experienced in the real world goes like this:

1.  At least one attorney I know, (Chris Attig) limits his practice to the CAVC.  So, he got a remand, at the CAVC got paid through EAJA.  Mr Attig and I are square and I owe him 0.  Then, he suggested I could either self represent at the BVA or enlist a Veterans Service Officer, or finally, hire another attorney who practices at the BVA.  He also gave me the name of a voc rehab specialist and suggested an IMO from him should suffice for me to win at the BVA (after remand).  I took his advice, hired a voc rehab IMO, and won, (represented only by the DAV at the Board)  keeping 100 percent of my retro (except for what I paid for the IMO)

2.  Another attorney, Glover Luck, represented me at both the CAVC and the Board.  I mentioned what happened, we got a cavc remand, Ms Glover also represented me at the Board.  She is the one who told me about this "offset".  

In other words, since she also represented me at the Board I owed her 20 percent (per the fee agreement), BUT 6000 dollars had already been paid to her from EAJA.  So, she said she was prohibited form collecting fees BOTH from the Veteran and EAJA.  This means she deducted the 6000 already received from EAJA and she charged me the difference of $1000.   Since she had already received 6000 from EAJA, my fees due were the 20 percent minus the EAJA fees already paid.  

      She "lumped the 2 appeals together"...CAVC and BVA.  Perhaps she could have done this differently, collected from the CAVC and collected again from my winnings at the Board.  However, her opinion was that she could not or would not do that..just 20 percent, minus anything paid from eaja.  Most of the time, a Veteran does not get money at the CAVC.   This has to come from the VARO implementation. 

      I simply suggest, before you engage an attorney to be clear on the fee agreement.  You would simply ask the question, "What happens if we get a remand?  Will you represent me at the Board?  Will the EAJA fees be an offset or will I owe the full 20 percent at the Board".   By clarifying this likely senario with your attorney before you enter into a fee agreement with them you will at least know where you stand.  

     Again, I can not guarantee this will work with EVERY Veteran, but it worked well with me.  From what you suggest this attorney was doing me a big favor, but this would need to be discussed with your attorney..he should be able to advise you much better than I can. 

3.  Last, I also got a remand after representation from the NVLSP in 2013.  Once I got the remand, he got paid, but I got nothing.  Reason:  The VARO failed to implement the remand.  The NVLSP no longer represents me, and Im "on my own".  They worked the CAVC appeal, and after the remand, they were done and got paid.  Im not happy I havent gotten paid yet, but I am talking to NVLSP and dont yet know what will happen.   

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I understand everything that you are saying, but I think due to the recent precedent, attorneys are no longer required to offset the 20% retro by the amount of the EAJA, as I understand it. They keep both amounts.

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Posted (edited)

As I mentioned this is a great question to ask your (potential) attorney, as Im unqualified to make legal interpretions of case law.  What did he say?

As always, you have to keep "the entire" case law in perspective and "not just" one case, where you may/may not have the same circumstances.  

In the case you posted, apparently AFTER the CAVC remanded the case, the Veteran and the attorney agreed to a fee arangement of 20 percent, where they apparently agreed there would be no "offset" for the EAJA fees.  

I did not have such an agreement with my attorney (that I would pay an additional 20 percent, over and above EAJA fees for representation to the BVA).  

      Thus, my attorney opined that it was the "same work" and I was entitled to a EAJA offset.  

       In other words, in the case you posted, the Veteran and the attorney signed 2 seperate fee agreements..one for the CAVC (which was paid for EAJA) and another for the BVA (which was to be paid by the Veteran).  

     That is, the Veteran agreed this was not the "same work", that it involved different work to represent the Veteran at the Board than to represent the Veteran at the CAVC.  

      Again, this depends on what fee agreement(s) you have with your attorney.  

      

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THIS is a great reason you need to discuss with, and understand your fee agreement(s) with your attorney.  In my case, this is what my attorney and I agreed to.  

'The court" reviews the fees between the attorney and the Veteran to be "reasonable".  They have "numbers" which are Dollars per hour differing in different states, that they feel are a reasonable fee.  

      Its my opinion the court will never award the attorney "more" than the fee agreement calls for.  Instead, if the court feels the attorney fees are "excessive", they may reduce them, but not increase them over and above that agreed to by the Veteran.  

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The court is clear. Attorneys can double charge vet and court. What a freaking joke.

 

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