Cleveland D. Harvey v. Eric K. Shinseki
24 Vet. App. 284
Vet. App.2011Background
- Harvey v. Peake remanded petitioner's claim to calculate compensation based on September 17, 1998 election date.
- Mandate issued September 16, 2008, and was returned for expeditious processing by VA.
- Petitioner alleged a parade of VA missteps and delays in processing the remand, including file handling, transfers, and clerical errors.
- On March 9, 2010, Harvey filed for extraordinary relief; the Court sought supplements, responses, and a detailed chronology from Secretary.
- Secretary maintained July 14, 2010 LARO letter completed the calculation; petitioner argued the delay persisted but conceded the relief was provided.
- Court held the petition moot and also held the Secretary in civil contempt for failure to expeditiously process the remand under 38 U.S.C. §§ 5109B and 7112; sanctions included attorney-fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of petition | Harvey contends relief remains needed due to delay and dispute over calculation. | Secretary argues LARO letter finalizes the calculation; petition moot. | Petition dismissed as moot. |
| Contempt for delay in remand processing | Harvey asserts Secretary's gross negligence caused undue delay in remand compliance. | Secretary maintains delays were due to systemic workload and not willful disregard. | Secretary held in civil contempt for failure to expeditiously process the remand. |
| Sanctions and attorney fees | Harvey seeks monetary sanctions and attorney-fee reimbursement for delays. | Secretary opposes additional monetary fines and disputes fee amounts. | Secretary ordered to pay petitioner and amicus curiae reasonable attorney fees and costs; no extra monetary fine imposed. |
| Reasonableness of fee determinations under EAJA | Harvey and amicus seek higher hourly rates under EAJA based on proceedings before the Court. | Secretary argues rates should align with EAJA norms and be reduced from proposed amounts. | Rates reduced to $188.57/hr for petitioner and $125.00/hr for amicus; specific cost awards outlined. |
Key Cases Cited
- Pousson v. Shinseki, 22 Vet.App. 432 (2009) (contempt standards and conduct of court orders in VA remand context)
- Chandler v. Brown, 10 Vet.App. 175 (1997) (mootness when relief has been provided)
- Thomas v. Brown, 9 Vet.App. 269 (1996) (per curiam regarding mootness)
- Vietnam Veterans of America v. Shinseki, 599 F.3d 654 (D.C. Cir. 2010) (courts may oversee unreasonable delays in processing veterans' claims)
- Ribaudo v. Nicholson, 20 Vet.App. 550 (2007) (jurisdiction over veterans-benefits claims in VA context)
- Abbs v. Principi, 237 F.3d 1342 (Fed. Cir. 2001) (sanctions and discretionary powers in remand-related litigation)
- Costanza v. West, 12 Vet.App. 133 (1999) (frivolous filings and Court's discipline powers)
- Edwards v. Nicholson, 21 Vet.App. 265 (2007) (frivolous pleadings and Court sanctions authority)