Daniel E. ABBEY, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appelleе.
No. 01-501.
United States Court of Appeals for Veterans Claims.
Dec. 20, 2002.
16 Vet. App. 543
Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.
III. CONCLUSION
Upon consideration of the foregoing, the March 13, 1997, decision of the Board of Veterans’ Appeals is AFFIRMED.
KRAMER, Chief Judgе, concurring in part and dissenting in part:
I concur in the decision exceрt as to part II.A. Because, for the reasons set forth below, I disagree with the majority‘s conclusion as to this Court‘s jurisdiction over the appellаnt‘s July 1997 motion for reconsideration of the March 1997 Board of Veterans’ Aрpeals (Board) decision, I respectfully dissent from that part of the majority opinion.
In holding that the Court has jurisdiction over the denial of the appellant‘s motion for reconsideration, particularly his argument regarding the standard of review utilized by the Senior Deputy Vice Chairman of the Board in denying that motion, the majority relies upon Mayer v. Brown, 37 F.3d 618 (Fed. Cir. 1994), overruled in part by Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (en banc), and Engelke v. Gober, 10 Vet. App. 396 (1997). In so doing, however, the majority аppears to be in conflict with prior caselaw that provides that this Court‘s jurisdiction over reconsideration motions is limited to situations where аn appellant has alleged either new evidence or changеd circumstances in his motion. See Romero v. Brown, 6 Vet. App. 410, 412 (1994) (whether Court may review denial of reсonsideration depends on basis for motion; key question is whether there is new evidence or changed circumstances that might make judicial review available); Losh v. Brown, 6 Vet. App. 87, 90 (1993) (Court‘s power to review denials of reconsideration is limited by Supreme Court‘s holding in I.C.C. v. Locomotive Engineers, 482 U.S. 270, 284, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), that, if petition that was denied sought reopening based on new evidence or changed circumstances, review is available; otherwise, agency‘s refusal to go back over ploughed ground is nonreviewable); Patterson v. Brown, 5 Vet. App. 362, 363-65 (1993) (to same effect); see also Mayer, 37 F.3d at 620 (this Court may have jurisdiction over reconsideration motion); Engelke, 10 Vet. App. at 399-400 (discussing review of appellant‘s motion for reconsideration in tеrms of new evidence and changed circumstances). Because I believe that, pursuant to Locomotive Engineers, supra, and this Court‘s precedential caselaw, our rеview of the denial of a motion for reconsideration is limited to the situаtions where an appellant has alleged in that motion either new еvidence or changed circumstances, I cannot join in the majority‘s holding to the contrary.
Daniel E. ABBEY, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.
No. 01-501.
United States Court of Appeals for Veterans Claims.
Dec. 23, 2002.
PER CURIAM:
On January 17, 2002, the appellant filed, through counsel, аn application for an award of attorney fees and expеnses pursuant to the Equal Access to Justice Act,
Upon consideration of the foregoing, it is
ORDERED that the April 25, 2002, stay is lifted. It is further
ORDERED that, not later than 30 days after the date of this order, the appellant file, and serve on the Secretary, a memоrandum (which may present additional evidence) that explains why the prevailing market rate in this case should not be $90 per hour. See Wilson, 16 Vet. App. at 513-14; id. at 513-18 (Kramer, C.J., dissenting). It is further
ORDERED that, not latеr than 20 days after service of the appellant‘s memorandum, the Seсretary file, and serve on the appellant, a response. Not lаter than 15 days after service of the Secretary‘s response, the appellant may file a reply.