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e. Direct Obligations--Additional Amounts
At first blush, it would appear that the amount potentially
recoverable with respect to the Izen fee request (reasonable
attorney’s fee of $120,496.56 plus reasonable expenses of
$3,417.84 equals $123,914.40) far exceeds the amount paid or
incurred by eligible persons ($4,600 + $74,400 = $79,000). That
is not the end of the story, however. On the basis of the
authority discussed below, we construe the Izen appellate
contracts as creating additional payment obligations that
eliminate the apparent shortfall.
In Phillips v. GSA, 924 F.2d 1577 (Fed. Cir. 1991), the
Court of Appeals awarded Ms. Phillips more than $9,000 in
attorney’s fees under the EAJA (which similarly limits awards to
amounts “incurred”), even though her attorney had agreed to
prosecute her appeal for a flat fee of $2,500. In an affidavit
submitted with the fee application (and quoted by the Court of
Appeals), the attorney described the fee arrangement as follows:
“She was to pay me $2500 of her back pay for the appeal
and I was to charge her no more. The recovery would
then be contingent upon success, recovery to be based
upon a statutory fee award if we prevailed. We kept
bookkeeping entries of my time, but once the $2500 was
paid by the client, she was not responsible for further
payment of our charges * * * ” [Id. at 1582.]
The Government argued that Ms. Phillips’s fee award should be
limited to $2,500, “because that is all she has paid, or is
obligated to pay, to her attorney.” Id. The Court of Appeals,
noting that the EAJA provides for an award “to the ‘prevailing
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