Clara Sue Padgett v. Eric K. Shinseki

a clear and demonstrate petitioner writ; right to

indisputable convinced, the cir given must be

cumstances, of the writ is that the issuance Dist. Cheney

warranted. 380-81,

Court,

2576, 159 L.Ed.2d 459 par- approval contemporane- JMR and the Court’s

ties’ termi- and mandate entry judgment

ous jurisdiction over

nated this Court’s any impediment, per- Because

appeal. otherwise, implementing the

ceived or exists, longer no award of benefits will payment be expects promptly.

made

Accordingly, it is Febru- petitioner’s that the

ORDERED extraordinary

ary petition form of a writ of mandamus is

relief as moot.

DISMISSED PADGETT, Appellant,

Clara Sue SHINSEKI, Secretary of K.

Eric Affairs, Appellee.

Veterans 02-2259(E).

No. Appeals

United States Court

for Veterans Claims.

Dec. The Secre- expenses.

work $650.23 whether Mrs. tary challenges posi- party; whether prevailing is a substantially tion of amount of whether the justified; are reason- expenses requested reasons, following For able. grant- will be application EAJA Padgett’s $27,886.67. amount of ed in the reduced

I. BACKGROUND 6, 2002, Mr. filed December On 8, 2002, deci timely August of an appeal a Appeals Board of Veterans’ sion of (Board), to dis which denied entitlement of the ability benefits for osteoarthritis direct, secondary, right hip on either basis, because it was not ser presumptive held argument connected. Oral vice panel and a April the decision of the and remanded set aside July 2004. See Board on (2004). Howev Principi, er, the motion and granted Secretary and Mr. cross-motion for en banc consid Padgett, respectively, eration, July 2004 decision was Padgett v. subsequently withdrawn. See GREENE, Judge, and Before Chief (2004). April On Principi, HAGEL,1 Judges. KASOLD and the en banc Court reversed con August 2002 denial of service ORDER disability on a sec right-hip nection for a basis, and remanded ondary and set aside PER CURIAM: right-hip dis claims for Padgett,2 Sue widow Mrs. Clara presumptive ability claimed on a direct Barney Padgett, II O. War veteran World Nicholson, Padgett v. 19 Vet. basis. See pursuant applies through counsel (2005)(en banc). App. 133 (EAJA), 28 Access to Justice Act Equal 21, 2005, 2412(d) (2009), was notified April an award of On U.S.C. on November that Mr. had died attorney fees and the amount 7, 2005, the Court $87,802.17 attorney September 2004. On for 565.2 hours of grant- en banc Court assigned following March panel judges was On 1. This for the order, ed Mrs. motion substitute separate which also dissolved representative personal of his veteran as matter the en banc consideration of this estate, submitting purposes of an for the Court. his behalf. See Cohen Vet.App. 7 granted the Secretary’s motion to with deemed plausible, light the entire decision, April record, draw vacated the the Board’s finding that the pre decision, August 2002 Board denied Mrs. ponderance of the evidence against substitute, Padgett’s motion to and dis Mr. Padgett’s claim for secondary service Mr. Padgett’s appeal missed for lack of Padgett, connection. See 19 Vet.App. at jurisdiction, citing Landicho 7 150. Because the record was less clear as (1994) (a Vet.App. 42 veteran’s claims for to entitlement to service connection on a disability compensation chapter under basis, direct or presumptive those claims 38, U.S.Code, of title do not survive a were set aside and remanded for further veteran). Nicholson, v. Padgett 19 adjudication. addition, Id. at 151-52. In (2005) Vet.App. 334 (per curiam order April the 2005 decision clarified the decision). withdrawing April 2005 Court’s previous holdings in Hicks v. (1995) and Padgett appealed

Mrs. that decision to Derwinski, Hersey v. 2 Vet.App. the U.S. Court of Appeals for the Federal (1992), (Federal stating that unlike the Circuit), proposition Circuit and subsequent by advanced the 5, 2007, Secretary that a ly, January “clearly the Federal Circuit finding erroneous” of the reversed the Board cannot be September Court’s 2005 deci sion, reversed unless and the evidence remanded is “uncontro- the matter to the verted,” the (1) provides Court’s caselaw consider the propriety of the existence of granting Padgett some pro controverting nunc tunc evi relief (2) dence preclude does not and substituting Padgett Mrs. this Court from as the either party setting appeal. aside or Padgett reversing “clearly a v. Ni cholson, (Fed.Cir. finding 473 F.3d erroneous” material fact 2007). remand, Padgett, On Board. requested from the reports parties regarding sta II. ANALYSIS Padgett’s tus Mrs. claim for accrued benefits. The advised the Court Preliminary A. Matters 17, 2007, on January following “spe The jurisdiction Court has to award rea review,” (RO) cial regional VA office sonable and expenses pursuant to 28 granted Mr. Padgett service for connection 2412(d)(2)(B). § U.S.C. may EAJA fees a right-hip basis, disability on a direct and be awarded where for at granted Padgett’s Mrs. claim ac torney fees expenses was filed within crued benefits. Mrs. ap did not the 30-day EAJA application period set peal, and that became final. decision 2412(d)(1)(B) § forth in 28 U.S.C. and con July Court, On the en banc inter (1) tains showing appellant that the is a alia, decision, reissued the April 2005 nunc (2) party; prevailing showing that pro tunc to the day before Mr. Padgett’s appellant party is a eligible for an award death and dismissed Mrs. motion because his net worth does exceed to substitute in the matter for lack of (3) $2,000,000; an allegation that the Sec jurisdiction. Peake, v. 22 Vet. retary’s substantially jus (2008) (en banc) App. (Hagel and tified; (4) an itemized statement Schoelen, J.J., dissenting). expenses fees and sought. See 28 U.S.C. decision, In reissued April 2412(d)(1)(A), (1)(B), (2)(B); Scarbor noted, alia, inter 401, 407-08, ough Principi, deficiencies v. two VA examination (2004); medical reports S.Ct. 158 L.Ed.2d 674 Cul upon by Gober, relied Board. v. Court also lens is, of (an attorney’s fees “interest banc). applica (en III Article create an course, insufficient and satisfies timely filed tion none exists controversy where case See Scar requirements. EAJA-content (citing claim” underlying the merits Cullens, supra. both borough 70-71, Charles, 476 U.S. v. Diamond Party Status Prevailing B. (1986))); L.Ed.2d re status Prevailing-party 20, 22-23 Derwinski, Vet.App. v. Swan of fees an award quired for standing to have must (appellant Nicholson, 20 Vahey EAJA. See under Derwinski, 1 Mokal appeal); pursue qual In order (Court adopted ju- 12, 13 appellant party, ify prevailing aas ease- of Article III restrictions risdictional “ relief on the at least ‘some receive rubric). or-controversy ” Principi, Sumner of his claim.’ merits is without stand- Although Mrs. banc) (en own in her EAJA award to seek an ing Home, Bd. Care (quoting Buckhannon been substituted she has capacity because and Human Health Dep’t Va. Inc. v. W. this purposes for the her husband 598, 603, 149 Res., 121 S.Ct. 532 U.S. will continue application, EAJA that (2001)). undisputed It is L.Ed.2d 855 to she is entitled whether inquiry into its the party for prevailing a was behalf as on his and EAJA Secre See application. of this purposes estate. of his representative personal at (Sec’y Response) Response EAJA tary’s a Cohen, (holding 7 that Vet.App. 8 at However, Mrs. contests be EAJA will based on of action cause that in her Padgett’s assertion the death to survived have deemed prevail a she, qualifies as individually, also “ repre- personal and party, ‘the aggrieved Appel purposes. EAJA party for ing estate party’s of the deceased sentative at 4. (App.) Application EAJA lant’s may sub- be person’ any other appropriate she is assertion that Mrs. to whom party’ ‘prevailing as the stituted based to be appears prevailing party may be award of an EAJA payment Fed appeal before the successful upon her made”). subsequent Court’s eral Circuit Justification Substantial C. alia, that, reissued inter July 2008 decision Padgett asserts Because reversing decision April 2005 Secretary’s application that EAJA to her of entitlement denial previous Board’s substantially justified, secondary position basis. aon service connection that Secretary to show con shifts would burden that she be Assuming arguendo was substantial position Government’s if this service- prevailing party sidered both the administrative us, at ly justified Pad- were before Mrs. connection issue underlying matter. litigation stages recognize that she fails to nonetheless gett, Brown, Cullens, 9 Locher v. supra; underlying See in the denied substitution Secretary’s The 537 matter, Vet.App. at 22 Padgett, sub to have been deemed will be position this regard with standing now her that “ person ‘if a reasonable stantially justified representative as application is is, correct, if has it could think it Padgett v. only. estate her husband’s ” fact.’ Still in law and U.S.App. basis Shinseki, 2009 reasonable WL Brown, 2009); (Mar. 2, see well LEXIS Claims Vet. Underwood, 487 U.S. Pierce Corp., (quoting Bank Lewis Cont’l 2541, 101 L.Ed.2d 2,n. 108 S.Ct. 1249, 108 L.Ed.2d (1988)). sign of the action upon Reasonableness is the foundation which the med based.”); upon “totality is determined based ical opinion Bowling is v. Princi Stillwell, the circumstances.” pi, (emphasizing at 302-03. duty to return inadequate exami report); nation DeLuca v. 8 Vet. Secretary argues his (1995) (“When App. a medical substantially justified ad both the report examination “does not contain suffi and litigation stages ministrative because detail,” cient adjudicator required anticipated “the Board could not have “return report inadequate for evalu the divided would [en banc] Court ” ation purposes.” (quoting 38 C.F.R. 4.2 [, effectively Hersey supra overturn ] (1994))); Ardison v. [, supra,], effectively Hicks ‘strike’ (1994) (concluding that an inadequate med some of the medical evidence from consid judicial review); ical examination frustrates eration,” and this change or clarifica Bonny see also v. Principi, tion in caselaw occurred after the Board’s (stating judging that “in Sec’y Response decision. at 7. The Secre during reasonableness the administrative tary’s arguments misplaced. proceedings, the Court looks the rele Contrary Secretary’s argument, vant, circumstances, determinative includ the basis for the Court’s reversal and re ing the state of the law at the time of the mand of Mr. claims the under decision”); West, Board Bac-A v. 13 Vet. lying appeal predicated upon was (2000) 308, App. (providing 311 that even inadequate Board’s errant reliance on two prior to the Court’s clarification of the VA Specifically, medical examinations. caselaw governing compliance with Board (1) noted that Court the Board errone remands, “there ample regulatory lan ously found both examiners had reviewed guage and case law requiring the Board to (2) file; claims one of the adjudication assure that its was undertak examiners did not physically examine Mr. only en after the compilation of an ade (3) Padgett; one of opin the examiner’s record”). quate definitive, fact, ions not and in encour (4) aged opinion; a more definitive Additionally, Secretary has not dem neither VA examiner referenced or had onstrated how the manner in which the knowledge of Mr. Padgett’s inju in-service Court reviews the Board’s findings of fact ry right hip, to his which occurred at the any way is in relevant to the Board’s re (the injury same time as his left knee sponsibility Secretary to ensure that the occurrence of which accepted). the Board obligation carries out his to assist vet Padgett, Vet.App. 19 at 148-49. claim, eran in processing his to return a opinion medical where it inadequate, is acknowledging Even that the Court’s provide adequate decision altered or an statement then-existing supported overruled “clearly by on the a reasonable precedent erroneous” stan basis both fact and in Pierce, 565, findings dard of review of the law. See 487 U.S. at 108 Board’s S.Ct. fact, regulation the law and 2541 that (holding are well-estab for the administrative with respect duty position lished to the Board’s to of the Government to be “substan assign weight tially justified,” due to the evidence and to it must have a “reasonable inadequate fact”); return an medical examination. both in law and Douglas basis v. Peake, (2009) (Secre Shinseki, Nieves-Rodriguez v. Vet. (2008) (“Part App. tary duty gather has “affirmative consideration of how much weight necessary as- evidence to render an informed Cullens, Requested Fees claim”); D. Reasonableness see on the

decision Sec- (noting burden on ap it an is established Once justification substantial retary prove award, the to an EAJA is entitled pellant litigation positions); administrative then determine reason (1998) West, v. Evans fees claimed. See the EAJA ableness of to a (Court give will no consideration Uttieri “unsupported con- or an “vague assertion” (“once (1995) met the predi a claimant has tention”). for an award requirements cate ques with the fees, faced is still

Moreover, Padgett, the by noted Mrs. a ‘reasonable’ ... what constitutes tion of on the any take Secretary position failed to fee”). Only reasonable fees of re- “cleai'ly erroneous” standard Court’s EAJA. 28 may be under U.S.C. awarded stage at the administrative view 2412(d); Ussery only but rather the proceedings, (1997) (“Once it determined that after the on the issue such a took award, an EAJA entitled to claimant is and Mr. Pad- rendered its decision Board what is ‘rea must determine Court still appeal initial had filed his gett fee.”); Ni see also McDonald v. sonable’ Occupa- generally Martin Court. cholson, 263-64 Comm’n, Safety & Health Review tional (“In reasonableness, determining U.S. whether the hours consider Court will agency (holding L.Ed.2d face; claimed unreasonable their are judi- positions are entitled litigating fac contraindicated otherwise merely they “post- when are deference cial item determining reasonableness tors for agency action rationalizations” hoc ], Hensley [461 ized in Eckerhart [v. appeal). for the first time advanced 76 L.Ed.2d 40 430 n. S.Ct. totality the circum on the Based (1983)], ]; persua or Ussery, [supra stances, Secretary not demon has by Secretary.”). More sively opposed substantially position that his strated was over, appellant’s it is the burden demon stage, and justified at the administrative request of his strate reasonableness therefore, to an is entitled Mrs. expenses. for fees and other Blum on of her hus of EAJA fees behalf award 897, 1541, Stenson, 886, 104 S.Ct. 465 Brown, Stillwell, supra; ZP band. (1984) (applicant has the 79 L.Ed.2d 891 (1995) 303, curiam (per 304 Vet.App. 8 that the rate showing “burden of claimed order) (Board substantially justified in not reasonable”). and number of hours are and es comply applicable with failing (1) appli- that an Secretary argues The Cyc precedent); see also tablished Court in $87,802.71, cation for is unreasonable Principi, holl $58,525, that Pad- to the Mrs. comparison (Court (2001) not address the Secre need on her accrued benefits gett received stage tary’s litigation at position (2) claim, Padgett’s estate is not carry his Secretary failed to where an award for work conducted entitled to demonstrating his burden death because those hours after his substantially justified the adminis be- separately expended expenses were Bac-A, stage); trative claim. half of Mrs. (“To an award of determine whether case, Secretary’s argument that appropriate given in a EAJA fees is expenses requested the amount of fees what Court must first determine compared was.”). unreasonable when per se the remand for reason actually with the amount received is an the in circumstances each case. See Ches Rather, West, incorrect statement of the law. ser v. 11 Vet.App. (“Court monetary

while the reward that a has litigant wide discretion in the award of attorney EAJA.”); recovers is to be in fees under the considered Ussery, factor (Court fees, Vet.App. at 53 attorney award of proportionality “must determine fee”); what is a ‘reasonable’ alone does not render an see EAJA award also San doval v. unreasonable. See generally City Riv (holding that Rivera, unsupported allegations by erside v. Secretary that time expended ex S.Ct. 91 L.Ed.2d 466 In cessive are insufficient justify stead, reduc the reasonableness of each EAJA tion). is determined a case-by-case Hensley, basis. See However, because Mrs. has (amount U.S. at 103 S.Ct. 1933 standing this matter only representa- as fee must be determined on the facts of estate, tive of her husband’s case); Nicholson, each Baldridge v. 19 agrees that she is not entitled to an EAJA (same); see also award for the work expenses expend- Vidal v. ed after her husband’s death —matters for (“[E]ach which, case stands on its own evaluation previously noted —she was de- easily and is not comparable with any oth nied standing. case”).

er The Secretary argue does not that the Moreover, Congress attorney extending to vet work spent hours on Mr. equal erans an opportunity judicial to seek claim before his death are exces- EAJA, redress under sive recognized or unreasonable. po Sec’y Response Moreover, tential for a at 14. disproportionate award when does not alia, noting, object inter claimed expenses. “the dollar $140 amounts hand, On involved are the other usually large enough to has sub- mitted an itemized attorney attract an fee statement from on a contingency ba counsel for her Cong. Reg sis.” 138 deceased husband that E. de- (Aug. 1992) (statement tails the spent extensive hours Edwards); and ex- Rep. penses incurred in progression of his Carpenter see also v. Principi, appeal. (“ These hours and objective ‘The of EAJA is reasonable on their face and will be award- eliminate financial deterrents to individ Sandoval, ed. Baldridge and both uals attempting to defend themselves supra; 437, see also Hensley, 461 U.S. against unjustified government action. (“[Cjourt 103 S.Ct. 1933 has discretion in Veterans are among types the of individu ” award.”). determining the amount of a fee als the statute was help.’ intended to (quoting 1342, Abbs v. Principi, 237 F.3d III. CONCLUSION (Fed.Cir.2001) Rep. (quoting H.R. No. Upon foregoing, consideration of the it is 102-1006, (1992), Cong. U.S.Code & 3934))). pp. Admin.News In ORDERED that the appellant’s EAJA context, this the Court has never held that application is GRANTED in the reduced an EAJA application per is se unreason $27,886.67. amount of able monetary because the sought amount KASOLD, Judge, concurring the attorney outweighs work the amount result: actually veteran; recovered the but in stead, the Court has used its discretion to I write separately to note that Mrs. determine what is a reasonable fee under appeal did not the Court’s decision underlying in the denying her substitution OF PRACTICE re RULES In therefore that decision appeal, and merits PROCEDURE. AND Shinseki, 23 v. See Jackson final. became No. 01-10. (mandate has judgment that a is “evidence Court Appeals States Court United Vet.App. R. (quoting final”

become Claims. for Veterans 41)); Kiddey Shinseki Jan. for EAJA (applications GREENE, Judge, and Chief Before “within to be submitted MOORMAN, HAGEL, KASOLD, in the action” judgment days of final thirty SCHOELEN, DAVIS, LANCE, 2412(d)(1)(B))); § see 28 U.S.C. (quoting Judges. Peake, J., (2008) (Kasold, concurring in the 168-69 ORDER result) Mrs. Pad- view that (expressing GREENE, JR., Chief P. WILLIAM sustaining interest legitimate gett had Judge: matter such opinion en banc should therefore moot and she authority of 38 U.S.C. Pursuant to 2071(b) deceased for her 7264(a) §§ have been substituted 28 U.S.C. husband). Moreover, Mrs. Pad- because needs (e), meet current in order to per granted Court, revising, substitution on an gett is es her basis, husband’s Rules of representative 45(g) of its sonal Rule interim incurred only, grant fees and additional tate and Procedure to Practice after capacity below. representative own as described authority in her to the Clerk now be consid death cannot it Accordingly, is applica this EAJA part of proper ered a that, date on the effective ORDERED in the deter I concur Accordingly, tion. au- order, temporarily the Clerk is of this entitled not mination that Mrs. pursuant filed requests, act on to thorized and ex award for time to an EAJA 5(a)(1)(A) Rules of the Court’s to Rule death. her husband’s incurred after penses Procedure, that ask Practice Eckerhart, 461 U.S. Hensley v. stay pro- authority to exercise its 76 L.Ed.2d representa- pro ceedings to allow bono (“ billed to properly not ‘Hours are grant or operating under program, tion to one’s properly billed client one’s authority first made under the contract statutory authori adversary pursuant 102-229, to Law No. in Public provided ” Marshall, 641 (quoting Copeland ty.’ au- evaluation. Clerk’s case conduct banc))). (D.C.Cir.1980) (en F.2d grant authority include thority shall pursuant deny any requests filed 5(a)(1)(A).

Rule revi- permanent of a contemplation In this in- with 45(g) Rule consistent sion to revision, it is further terim hereby in- ORDERED Advisory Rules from its vites comment this public from Committee must be All change. comments proposed by the of this Court Clerk received

Case Details

Case Name: Clara Sue Padgett v. Eric K. Shinseki

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Dec 16, 2009

Citation: 23 Vet. App. 306

Docket Number: 02-2259(E)

Court Abbreviation: Vet. App.