891 F.3d 976
Fed. Cir.2018Background
- Bennie C. Robinson, a Vietnam veteran, underwent cardiology testing on April 2, 2007 that showed left ventricular dysfunction; VA granted a 60% disability rating effective that date.
- Robinson’s VA cardiologist had ordered tests earlier (Feb 2006 and Nov 2006); tests were delayed ~14 months and not performed until April 2007.
- Before the Board of Veterans’ Appeals (BVA) Robinson did not argue an earlier effective date based on the February 2006 order; the BVA adjudicated rating magnitude and affirmed a 60% rating effective April 2, 2007.
- Robinson raised the effective-date argument for the first time on appeal to the Veterans Court; the government argued issue-exhaustion barred the claim.
- The Veterans Court exercised its discretion not to enforce issue exhaustion, ‘‘set aside’’ the BVA decision and remanded for the Board to consider Robinson’s newly raised effective-date argument; the Veterans Court retained no jurisdiction.
- Robinson applied for EAJA attorney fees based on obtaining the remand; the Veterans Court denied fees because the remand was not predicated on administrative error and thus did not make Robinson a "prevailing party." The Federal Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Veterans Court remand confers EAJA "prevailing party" status when the remand permits consideration of an issue raised for the first time on appeal | Robinson: securing remand to have BVA consider an earlier effective date is "some relief on the merits" and thus EAJA prevailing-party status (fees). | Government: remand arose from Veterans Court discretion to hear a waived issue, not from agency error; remand alone without agency error or a material legal change does not confer prevailing-party status. | Remand that is not predicated on administrative error and does not materially alter the legal relationship of the parties is not EAJA "prevailing party" relief; Robinson is not entitled to fees. |
Key Cases Cited
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (prevailing party requires material alteration of legal relationship marked by judicial imprimatur)
- CRST Van Expedited, Inc. v. Equal Emp. Opportunity Comm’n, 136 S. Ct. 1642 (2016) (reiterates material-alteration test; defendants may prevail without merits judgment)
- Kelly v. Nicholson, 463 F.3d 1349 (Fed. Cir. 2006) (remand based on agency’s failure to consider all evidence can confer prevailing-party status)
- Davis v. Nicholson, 475 F.3d 1360 (Fed. Cir. 2007) (default that remands not showing agency error do not confer prevailing-party status)
- Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (remand must be based on administrative error for EAJA relief)
- Ward v. U.S. Postal Serv., 672 F.3d 1294 (Fed. Cir. 2012) (remand not rooted in agency error does not yield prevailing-party status)
- Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360 (Fed. Cir. 2003) (agency concession of error or court-found error supports prevailing-party status)
- Raniere v. Microsoft Corp., 887 F.3d 1298 (Fed. Cir. 2018) (applies CRST material-alteration guidance in a fee context)