Swanagan and Turman (Attorney Fees for Out of Country Attorneys)

Swanagan and Turman v. McDonough, Opinion Number 19-1350(E) and 19-3258(E), was decided June 23, 2021 and involves the appropriate hourly fee for attorney work under the Equal Access for Justice Act.

Veterans know that for successful work done before the Court of Appeals for Veterans Claims or Federal Circuit Court of Appeals, their attorney can be paid by the government under the EAJA (Equal Access for Justice Act) statute and this amount is not paid by the veteran.  The EAJA hourly rate changes every year based on the cost of living and also factors in where the work was performed (i.e., the South, North, etc).

These cases involve an attorney that had won a case and sought EAJA fees.  The veteran had moved to Ecuador and done a portion of the work in Ecuador and the result was wrangling over the appropriate amount of the EAJA fee.   The veteran’s attorney sought a locality increase similar to the DoD and UN’s indices for cost of living in Ecuador, which would have led to a rate of approximately $196 per hour.

The Court determined:

nothing in the EAJA statute or this Court's jurisprudence bars consideration of a COL increase to the statutory maximum for attorney work performed outside the United States. However, as with any attorney fee request, appellants bear the burden of demonstrating the reasonableness of their proposed method for calculating the appropriate hourly rate for work.

Id. at *10.  The Court then explained the appellant did not identify what other potential indices were available or explain why the selected the DoD and UN indices over others, no evidence the comparison U.S. cities were adequately representative, or why an average of the UN and DoD indices was appropriate.  Id. at *12.  It determined the appellant had not carried his burden and then cut his rate to $125 per hour.

EAJA cases really only concern attorneys (though they should be of consideration of veterans who want to make sure they can obtain good attorneys), but I have to admit this case really does not grab even my attention.  I frankly just don’t see too many out of country attorneys practicing veteran’s law.

Decision by Chief Judge Bartley and joined in by Judge Allen and Falvey.

To know more about whether Thomas Andrews can help you, please visit my website.