McManaway v. Principi

ORDER

Currently pending before the Court is the appellant’s application for fees and expenses filed pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). On July 3, 2001, the Secretary filed a motion to stay proceedings in this appeal pending the final resolution of Linville v. Principi, 15 Vet.App. 48 (2001). In Linville, the Court issued a panel order on June 13, 2001, requesting supplemental memoranda addressing this Court’s jurisdiction to award EAJA fees for work done before the U.S. Court of Appeals for the Federal Circuit. Alternatively, the Secretary’s motion requests an extension of time in which to file his response to the appellant’s EAJA application. The appellant, through counsel, filed a response opposing both the motion to stay proceedings and the motion for an extension of time.

Upon consideration of the foregoing, it is

ORDERED that the Secretary’s motion to stay proceedings is denied. It is further

ORDERED that the Secretary file his response to the appellant’s EAJA application within 20 days after the date of this order.

concurring in part and dissenting in part:

I voted to grant the Secretary’s stay motion in part (as to the $3,634.88 requested for representation in the Federal Circuit) and deny it in part (as to the $7,362.65 requested for representation here). I see no reason to proceed separately with the issue of EAJA fees for work in the Federal Circuit that has been briefed for a panel of the Court in Linville, 15 Vet.App. 48.