Cullens v. Gober

notice, part As of claim. the Secre- CULLENS, Jr., Appellant, Harold E.

tary portion which shall indicate evidence, any, information and if is to be provided by the por- claimant and which GOBER, Acting Hershel W. tion, any, Secretary, in accordance Affairs, Appellee. of Veterans with section 5103A of this title and No. 99-364. law, applicable provision other will Appeals United States attempt to obtain on behalf of the claim- for Veterans Claims. ant. Argued Sept. 2000. Derwinski, Vet.App. Karnas Decided Jan. (1991), 312-13 held that unless otherwise, Congress provided where or regulation changes during

statute

appellate process, the version most favor apply.

able to the claimant It shall is not

the function of this determine

the first instance which version of the law

is most favorable to the claimant. See West, (1998);

Baker v.

Dudnick v.

On consideration of the it is foregoing, shall,

ORDERED days order,

within 30 after the date of this

file, Secretary, and serve on the a supple-

mental memorandum law explaining any,

what if impact, she believes disposi-

enactment the VCAA has on the

tion of her underlying appeal mo- Also,

tion for panel decision. explain

shall why the Board decision be vacated and this matter pursuant

remanded to the VCAA and Kar-

nas, file, supra. The shall appellant,

serve on the a reply to the

appellant’s supplemental memorandum 30

days after its date of appel- service. The chooses,

lant ifmay, she file a reply to the

Secretary’s response days within 14 after Secretary’s date service re-

sponse. Bowie, MD, for Waghorn, of

Andrew J. appellant. Principal Campbell, Deputy R. Randall Counsel, with whom Assistant General Counsel; Bradley, agrees A. Leigh Secretary] General to award de- [The Garvin, Counsel, pendents’ Ron Assistant General educational assistance benefits Washington, on the all of pleadings, period were for courses taken from DC, appellee. 9, 1992, 21, 1993, September May September April from 1973[sic] KS, Carpenter, of Topeka, Kenneth M. 1994, § pursuant to 38 C.F.R. 21.4131 Organization for the National of Veterans’ amicus Advocates as curiae. KRAMER, Judge, Before Chief and

FARLEY, HOLDAWAY, IVERS, Secretary] 3. admit [The does not GREENE, STEINBERG, Judges. and by Depart- error was committed

FARLEY, Judge: ment of Veterans Affairs or of its employees adjudication in the of the appellant’s appli- Before the Court is the subject claim which is of this appeal. cation, pursuant Equal to the Access to 4. (EAJA), Appellant agrees pending that his 2412(d), § Justice Act 28 U.S.C. appeal in the United States of attorney expenses fees Claims, Appeals for Veterans $7,417.76. U.S. Vet. amount of The has 99-364, dismissed, App. shall No. be response opposing granting filed a of prejudice, all as to issues addressed appellant reply fees and the has filed a by 4, 1998, the BVA in its November response. follow, For the reasons that decision following execution of this will grant appli- agreement. cation. Background

I. 5. parties agree agree- The this purpose ment is into for entered appeal filed The from a avoiding litigation further and the costs November the Board of parties agree related thereto. Both (BVA Board) Appeals deny- Veterans’ or the settlement unique is based on the ing dependents’ his claim for educational way facts of this case and no assistance benefits for educational courses be interpreted binding precedent 9, 1992, from September taken to April the disposition of future cases. prior filing 1994. October to the appeal, parties of a record on filed a Agreement at 1. (Motion) Joint Motion to Dismiss which Motion, Subsequent filing

stated: the Clerk of the on behalf of the parties agree The terms which the Court, granted the Motion in an order of appeal this is be con- dismissed are 12, 1999, dismissal dated October which Stipulated Agree- tained in the attached stated: resolved, ... parties ment. The have parties jointly The moved have to dis- satisfaction, their mutual the issues appeal miss agreed upon. this on terms appeal raised this and aver ... See Rule the Court’s Rules of (2) error, this is not confession Practice and It Procedure. Secretary, provisions under the ORDERED grant- motion is VetApp. R. may U.S. 5 [“The Court appeal ed and this is dismissed. Under suspend proceedings an appeal after has 41(b) Rule [“An order on consent dis- been filed ... motion the Secre- missing remanding a case will also error”]; tary reasons of confession mandate”], constitute this order is agreement disposes the mandate of the Court. on appeal. case Motion 1-2. The attached The Stipulated application then filed an Agreement (Agreement) provided: with the attorney Court for an award of Jamestown, EAJA, F.Supp. Heeren v. under for work expenses, fees party (W.D.Ky.1992) (prevailing sta bringing done on his behalf in a case where settled obtaining tus established this Court and catalyst prompt “the lawsuit acted as appeal. and dismissal of ac to take the desired (Appl.) ing the defendant Application tion”). sought in this Comparing relief II. Analysis through set matter and the relief obtained jurisdiction to award tlement, we find that ob attorney expenses reasonable fees complete success in his desired ob tained 2412(d)(2)(F). In U.S.C. pursuant to 28 i.e., jective he all appeal; was awarded jurisdiction for the Court to have order previously denied. of the benefits it must filed over appellant that was the “clear we find the 30-day period in 28 within set forth the matter. underlying in the See winner” 2412(d)(1)(B). § to be U.S.C. order Cervantez, addition, Agree the supra. award, the eligible applica for an EAJA provided for the award of benefits ment (1) showing the tion must contain: a that upon regulation a that became effec based party within the applicant prevailing is a of November 1998 tive after the date the EAJA; (2) meaning of an assertion that decision and indicated that was BVA applicant party eligible is a for an the litigation. into avoid further entered to his net award under EAJA because or her factors, Agreement at 1. con These See dollars; worth not exceed two million does by clearly parties, establish ceded both (3) the an assertion that the of “lawsuit,” appellant’s appeal, the or that Secretary in at the administrative level or necessary step bringing a about the was litigation substantially justified; not desired, that Secretary and the did result (4) of fees and an itemized statement the this gratuitously settling act matter expenses sought, by an affi supported and Heeren, appellant’s favor. su the See applicant’s from counsel. 28 davit the See also, e.g., see Citizens Coalition pra; for 2412(d); West, § U.S.C. Chesser v. 11 Vet. Euclid, Compliance v. 717 Block Grant (1998); Brown, 497, App. 499 Bazalo v. 9 (6th Cir.1983). Therefore, we F.2d 964 (1996) (en 304, banc), Vet.App. 308 rev’d on is appellant prevailing party find that the a West, grounds sub Bazalo v. other nom. to pursuant EAJA. (Fed.Cir.1998). 1380, 1384 150 F.3d Secretary that The also concedes the jurisdictional The has the appellant met eligible for an award appellant party is a EAJA in that an prerequisites of he filed EAJA, and does not contend that under 30-day within limit. the time that special circumstances exist would Bazalo, 150 F.3d at 1383. In terms See unjust an award or that the make award, the appellant’s eligibility the for hourly sought are rate hours claimed Secretary the does contest Secretary argues, The unreasonable. prevailing party, status a however, attorney payment that fees agrees pursuant to the terms of his expenses posi- barred because is settlement, a appellant prevailing justified. substantially tion was 448 Gagne, v. U.S. party. See Maher A. Justification Substantial L.Ed.2d S.Ct. alleged a has party may be established Once (prevailing status justification, the burden by procurement settle- lack of substantial favorable Secretary ment); prove that VA 776 shifts Whitfield, see also Cervantez (5th Cir.1985) (when justified in its adminis compar- substantially F.2d complaint positions. See Locher ing litigation raised in the trative and claims (1996); settlement, Ba if the the relief obtained in the “winner,” zalo, Secretary at 309. The a clear plaintiff is found be established); citation to the 1999 amend- argues prevailing party status decided, ed version of 38 C.F.R. 21.4131 and the views of other courts This, Agreement, they suggest, can Stipulated which reflected a merits. law, regulatory time-consuming possibly avoid the change sole process assessing for inexact catalyst the settlement. The strength position. argues Government’s disagree objective While we do not administrative level was not relevant, indicia can do we not think justified and that the errors in Board’s answer, they provide a conclusive in ei- would have warranted reversal re direction, ther present case. gardless subsequent regulatory change support position, law. In Respondents his contend the lack copy presented of a Govern- draft motion for ment’s prepared reversal was demonstrated its attorney willingness litigation forwarded to counsel for the to settle the on un- factors, early stages favorable terms. Other of settlement howev- er, might explain equally negotiations. admits that example, well—for change substan- this document was sent counsel policy tive Secretary, instituted a new adminis- urges limit Court to tration. The unfavorable of a terms set- inquiry concerning justification substantial agreement, tlement inquiry without Court, in into to the record created this as settlement, the reasons for cannot con- respect adjudication does with to the clusively establish the weakness the applications in cases that have been position. Government’s hold To other- West, remanded. 12 See Jackson Vet. only wise would not truth distort the 422, (1999) App. 426 (holding that the thereby penalize discourage and useful Court cannot in consider its determination settlements. justification regarding any alle ^substantial gations of in error not 568, 108 contained the at S.Ct. 2541. order); Court’s remand see also Rhodan v. Consistent with the West, 55, (1998); Vet.App. 12 58 Locher v. Pierce, holding Court’s in Court this estab Brown, (1996); Vet.App. 9 535 Dillon v. following lished the standard to determine Brown, (1995); Vet.App. 8 165 Olney v. whether position Secretary the Brown, 7 Vet.App. 160 justified: substantially Court previously This has not VA [T]he addressed must demonstrate the reason- ableness, fact, what in in position evidence is to be law and the reviewed justification determination of of the VA in matter in before the However, and of by cases. in the action or failure to act settled Pierce v. Un derwood, VA, in 552, 2541, a matter 487 VA before the based U.S. 108 S.Ct. 101 totality circumstances, (1988), L.Ed.2d 490 Supreme Court merits, conduct, including given, specifically limit reasons refused to the factors that consistency judicial precedent with a court can in making consider a substan policy respect and VA such posi- tial in a determination case tion, act, and action or failure as that had been settled: reflected the record on reach, last, We wheth- merits of filings parties before the Court. er the District abused discre- Brown, Stillwell v. in finding tion the Government’s (1994). “[Reasonableness is determined position “substantially justified.” was not circumstances, totality parties Both argue purposes single-factor approach.” Id. inquiry rely this courts should on “ob- jective indicia” such the terms At oral argument, pointed agreement, stage language to the in support of EAJA of his proceedings position at which the were merits the Court is authorized to settlement, pursuit of the second continued before parties’ submissions look unnecessary. stage of of error often becomes allegation the substantive this Court Derwinski, 1 Vet. determining Fletcher v. proceeding Cf . (“A litigation (1991) administrative or is meant United States’ remand App. justified. Sec justi a critical examination to entail U.S.Code, 2412(d)(1)(B), pro title tion ex for the decision. fication vides, or not pertinent part, “Whether BVA will reexamine pects that was sub position of the United States record, any other evi seek evidence of stantially justified be determined on shall necessary, and the Board feels dence (including the record the rec the basis of timely, well-supported issue the action or respect ord with case.”); Zarycki v. failure this see also which the civil agency upon act (1993) (“[I]n view of the ) made in the civil action is based which is readjudication, there for remand for need expenses and other action for which fees to address [the is no need for the Court added.) sought.” (Emphasis Focus are allegations of error appellant’s additional language that ing selectively on the time.”); decision] in the BVA shall be made “on the basis determination West, Vet.App. Gaines ... which is made in the civil of the record that, light of the errors (noting expenses and other action for which fees remand, requiring there was BVA decision posi took the sought,” are ap to address the no need language argument at oral that this tion Why arguments). then pellant’s additional conclusively supported their own time party would either waste precluded reviewing from this Court effort, judicial to mention re developed in the action evidence not before sources, if an issue a settlement pursuing surprising that the It is not this Court. already been reached? If agreement has supporting no caselaw offered parties’ to the we were to restrict review that interpretation language, of that or his only answer agreement, settlement precedent. find no such the Court could to ensure unacceptable be an one: would that the specifically That subsection states (or prevent) an award of EAJA fees. respect with “record” includes “the record this, parties where the agen In a case such as the action or failure to act settlement, a there is sim upon agreed which the civil action is based.” have cy 2412(d)(1)(B). parties negotiate, We find ply 28 U.S.C. no reason for the meaning language to, of that neces plain present to the Court all agree and developed at the sarily includes the record All that for settlement. possible reasons Appeals region and the Board of Veterans parties is that the is relevant to the Court (RO) respect to the claim al office with agreement. have reached settlement Moreover, this appealed to this Court. Brown, Vet.App. 7 311 See Hines reading of the statute is consistent with (“When (1994) the Court parties before Supreme mandate that a court Court’s settlement, Rule 42 have reached a beyond must look the terms of a settle of the claim because a requires dismissal agreement in considering ment the issue of exists”); controversy longer case or no Pierce, justification. Derwinski, 2 Vet.App. Bond 568, 108 S.Ct. 2541. (1992) order) (motion (per curiam to dis predicated agreement on a settlement miss inescap- conclusion is logic

The of this Rule 42 dismissal requires considers the context able when one controversy, or is no case or there “[w]hen negotiated. are When which settlements controversy be or a once live case in when appellant alleges two or more errors moot, jurisdiction”). lacks claim, comes denying a and the a BVA decision to an EAJA award have entitlement Secretary agrees that Board did err To or not an alie- hinge solely upon respect at least one that would warrant gation in a mining of error is contained whether the has met this burden, agreement or a court dismissal order the Court will follow Stillwell: discourage prevent would be to settle- that “a The Court also noted protracted prolonged and ments invite justified position though can be even it is practice, such a litigation. policy correct, As and we it believe can be Pierce, would be inconsistent with result (i.e., substantially part) jus for the most 487 U.S. at 2541. The S.Ct. rea- if a person tified reasonable think could parties agreed son the have correct, is, settle if it has a reasonable matter, particular Underwood, whether stated or un- in law and fact.” basis stated, necessarily 2, 108 does not define the lim- U.S. at 566 n. S.Ct.

its of a inquiry allegations court’s into litigation position the administrative or VA must demonstrate the reason- [T]he substantially was not United States ableness, fact, position in law and Pierce, justified. supra. See of the VA in a matter before the and of the action or failure to act B. Entitlement to Fees VA, in a VA matter before the based predicate There are three re totality circumstances, quirements granting to the Court’s merits, conduct, including given, reasons pertinent that are consistency judicial precedent (1) case: must The Court find that policy and VA with respect posi- to such party opposing the United States is a tion, act, and action or failure to (2) “prevailing party”; there must be an reflected the record on and the allegation by gov that the filings parties before the Court. ernment’s was not substantially (1994). justified and there must be no Court find ing contrary; there must be concedes that finding Secretary’s position litigation phase no Court there are circum at the justi against proceeding stances that would make an award of this fied, government unjust. Elcyzyn v. but has See asserted A ap the administrative level was not. The finding predicate pellant argues court’s that each of these that the requirements “operates has been met as a at the administrative level was not sub eligibility.” stantially justified one-time threshold for fee regulation because the Jean, 154, 160, (38 upon by Commissioner 496 U.S. relied the Board C.F.R. (1990). (1997)) 110 S.Ct. § L.Ed.2d 134 21.4131 was inconsistent with the Once the claimant statutory statutory crosses this precedent framework and Court threshold, remains for the district invalidating regulation. “[i]t a similar See 38 5113(a); court to § determine what fee is ‘reason U.S.C. Bernier v. 7 Vet. ” Eckerhart, (1995) Hensley able.’ App. 437-38 (invalidating reg 424, 433, denying S.Ct. 76 L.Ed.2d 40 ulation retroactive vocational re (1983). making In program the threshold determi habilitation benefits to veterans entitlement, statutory nations as to the who received benefits under another VA must, may, allega training indeed consider program during any education or Secretary’s position period tions that the not was for which retroactive benefits were 21.282(b)(2)(ii) substantially justified § sought; the administrative 38 C.F.R. (1994)). during litigation. appellant level As noted argues The also and/or above, made, allegations, Secretary’s position such when shift the was not substan Secretary to proving tially justified the burden of because the Board failed to that his administrative and litigation posi appellant address whether the had shown substantially justified. tions were good delay See cause to excuse in submitting a Bazalo, supra. Locher and both complete deter- claim for educational assistance 21.3032(b)(3) abegations, respond appellants § to See 38 C.F.R. benefits. (1997). ample to seek leave opportunity he had supplemental memo- to file a Secretary posi maintains that his The randum. level was sub tion at the administrative stantially justified because the Board’s pend- of this claim was While merits existing then denial was based on Court, plead- this there no ing before were regulations, and en controlling that he remand, filed, joint no motions for ings Agreement solely into the because tered re- no remand. The matter was (see change Fed.Reg. of a law settlement, a settlement solved 1999), (May as C.F.R. codified provided the all of benefits (effective 1999)) § July subse 21.4131 Although sought appeal. there was he quent of the deci to issuance Board Dismiss, an at- the Joint Motion to to denying sion entitlement Agreement, Settlement and a Court tached § Compare 38 C.F.R. 21.4131 benefits. pursuant to the dismissing order the case § with 38 21.4131 C.F.R. Motion, specifies none these documents Secretary’s appel to response settlement, than a the bases other application lant’s EAJA defended Agreement that the was entered statement law, upon then current Board’s rebanee further purpose avoiding into “for but did address the BVA thereto,” litigation and the costs related ways. opinion deficient other boilerplate incorporated which is standard argument, made Secretary At oral agreements. In addi- in most settlement appebant much of the fact that the first tion, typical agree- is also in settlement Secretary’s reply articulated to kind, specificahy ments of this the Motion response to his his ar that the does not confess states gument Thus, if compelled error. we were substantially justified only to the documents filed “good failure look Board’s to address provision might found that cause” C.F.R. with we have 21.3032(b)(3). notes, howev The Court met his of estab- burden er, obligation in his appebant’s lishing that the government appbeation merely initial EAJA to al substantially justified, because there that the lege United States be no evidence before this Court would substantially justified. Baza was not See However, in contrary. light of the lo, After 150 F.3d 1380. Pierce, supra, Supreme Court’s decision allegation, makes such burden can, fact, compelled. we are not so we prove shifts must, Motion, Agree- beyond look Secretary. Ba and remains with the See ment, and Court order to determine zalo, Moreover, at 309. position of the whether the United States Secretary argument at oral that admitted at the administrative level substantial- appebant’s position aware the he was of justified. ly by the that such error was committed Secretary’s agrees The with the parties represented Both Board. upon contention the Board’s rebanee that, argument prior at oral to en § pro- 21.4131 provision the 38 C.F.R. agreement, the tering into the settlement hibiting prior the to payment benefits attorney had appebant’s forwarded receipt from date of forth, year one the the draft motion for reversal that set certification, as it was aba, the enrohment re appebant’s argument inter Board rended its effect at time the “good provision of 38 garding the cause” See, decision, justified. 21.3032(b)(3). Additionaby, '§ C.F.R. 245, West, Vet.App. e.g., felt Clemmons v. notes that had the (1999). However, not end opportunity had denied the does that he been (4)Date inquiry. our The appellant argued reopened un- application (d) specifically that erred in paragraph Board der of this subsection. addressing potential applicability of 21.4131(a) (1997). § 38 C.F.R. “good provision cause” of 38 C.F.R. 21.3032(b)(3) § appellant’s to acknowledged appel claim. The Board that the The has not lant had addressed con- been awarded educational assis prior tention. tance for to September courses taken 9, (Cullens, 96-39766, 5) (i.e., BVA 4, 1998, The Board’s November 4, 1991, September courses taken from following findings recites of fact in 1992). 22, May to presume We must from entirety: their recitation noting only Board’s of facts necessary date, 1. equita- i.e., 24, All evidence for an one application February 1992, appellant ble distribution of the veteran’s claim fact that the developed. has been awarded benefits for taken courses from 1992, September May 1991 to appellant 2. a claim submitted RO’s November 1995 award was based dependents’ educational assistance for 24, 1992, appellant’s February 1991, 4, September courses taken from application. Had the submission addi 22, 1992, May to which was received on April tional enrollment certificates February 24, 1992. The enrollment cer- by been considered or the RO Board completed by tification the appellant’s reopened benefits, as a new or claim for period school for that was received on possible the earliest dates the RO could day. the same have awarded benefits to the 13, 1995, April 24, 3. April On year would have been prior April one to 1995, electronically VA received enroll- (and 1995. the record before us by ment certifications for courses taken Board) was before the demonstrates that 19, from November had a claim for education 19, 1995, May to which included enroll- pending February benefits since ment certifications for courses taken veteran Because the failed continue period September from to submit enrollment certificates between 13,1994. April February and April applica complete. tion was not The reason for the Cullens, 96-39766, E. Harold BVA at 3 delay submitting his enroll (Nov. 1998). Board, As noted dispute: ment certificates is not in he did the time of its decision C.F.R. 21.4131 continue submit enrollment certifi provided that the commencement date of delay cates of a VA award educational assistance benefits adjudication aof claim for service connec shall be the latest of following dates: tion for cause of his father’s death. (1) Date certified school or estab- The Board noted: (b) (c) paragraph lishment under sympathizes The Board with the appel- this section. lant’s contention that as was not he noti- year Date 1 prior to date of re- fied of dependents’ his entitlement ceipt or enrollment educational January assistance until certification, whichever is later.... VA, delay by due to and that he should have expected been to file following: The later of the date, years forms before that when his (i) approval The effective date to already entitlement the benefit had course, or However, been denied VA. (ii) year permitted One before the date VA re- Board is to decide the approval appellant’s ceives notice. claim in equity, is con- (“[Ojnce out properly a has made veteran express strained to follow the mandate agency’s ... regulations. well-grounded claim found 5107(a) to duty pursuant to section assist Cullens, 96-39766, BVA at 5. investigation ... of all attaches to the However, appellant’s claim causes of that current possible in-service (or pending was at least deemed had been disability, those to the including unknown RO), it is so reasonable conclude veteran.”). Accordingly, that the we hold the Board should have considered burden, in the not met his appellant’s whether the claim “incom context, demonstrating EAJA of thus, plete,” time whether the limit questions Board’s failure to address these required have which he was could been justified. substantially “good for cause shown.” See 38 extended 21.3032(b)(3) (1997) (“When argues the appellant § Before this C.F.R. 21.3032(b)(3)— § incomplete, claim time limits within is beneficiary required or which a claimant specifically incorporates what the BVA complete through the claim the submis into “equitable principles” described as evidence, sion documents or other infor legal per- governing framework may good for mation extended cause fection claims for education benefits. shown.”). though Even had Yet, inexplicably, the Board determined equita what the considered raised Board could not even reach the issue arguments, ble the Board did not discuss delay in sub- ajppellant’s whether [the good justify cause shown to mitting required certificates appellant’s time to the extension school enrollment should be excused. certificates, or his enrollment even submit result, is no As there discussion 21.3032(b)(3) § provision cite that its issue for review. appellate today, decision. We need not decide Notwithstanding, ajppellant ar- [the opinion express no as to whether time gues good cause that he established extended, that good limit should have been disagreement, cor- his notice of when he shown, that, or as the cause was rectly delay that the in the sub- stated 21.3032(b)(3) contended, § was even appli en- mission of the certificates of school claim. The appellant’s cable to the facts had been caused the VA’s rollment case, including delay adjudi VA’s delay adjudicating the of service issue claim, cer cating the service connection for the cause of the veteran’s connection potential applicabili tainly give rise correctly ajppellant death. also [The and, ty as the Board of that subsection never him to noted that the VA advised eq acknowledged, raised keep submitting of school en- certificates support of his arguments uitable conten not contest rollment. The BVA did to benefits tion that he be entitled Rather, in its decision. these matters September period between acknowledged equities the Board face, on its April case, but denied retro- surrounding the appears lacking to be Board’s legal want basis active of a benefits statement of reasons bases adequate awarding such benefits. Now argument. rejection equitable of his uncovered, legal such a basis has been 7104(d); § § v. Der Gilbert See 38 U.S.C. that the Appellant respectfully submits (1990) (Board 56-57 winski was not Board’s decision and bases required to articulate reasons justified. for the claimant for its decision sufficient Response to EAJA Reply Appellee’s agency’s decision and to understand Petition, Secretary’s response 14-15. The decision and to precise basis for that dis- review); judicial Schroeder v. facilitate cf. 21.3032(b)(3) (Fed.Cir.2000) the ade- nor West, cussed neither 212 F.3d quacy of the Board’s statement of reasons has therefore complete achieved success or bases for its decision. on the merits of his claim. Although the rejected appellant’s argu- has the above,

As noted appellant once an ment that the Board’s decision was not alleged justification, a lack of substantial substantially justified in its reliance Secretary the has the burden of proving 21.4131, the former 38 C.F.R. in light of substantially justified that VA was in itfe Hensley, supra, we find no reason to re- position. See Looker and Bazalo both su duce the amount of fees to be awarded. pra. This Court has held that the Moreover, Secretary does not contend of the United substantially States was not justified the hours claimed or hourly rate the administrative level where are Accordingly, unreasonable. provide the Board failed to the Court adequate grant will statement of in reasons or bases its deci See, entirety. sions. ZP e.g., 8 Vet.App. (1995); Elcyzyn, 7 Vet.App. at III. Conclusion Secretary 176. The has offered this Court argument

neither nor evidence that On consideration of foregoing, manner in which the Board dealt with this appellant’s application for an award of at- “good argument cause” torney expenses fees and granted. The justified. Therefore, the Court finds that Court notes that at argument oral has not met his burden of parties agreed that much of the concerns proving of the United raised this matter could be if avoided States at the administrative level was sub parties included attorney the issue of stantially justified. fees and EAJA their negotia- settlement

C. Amount of agreements. Fees tions and The Court certain- ly agrees that this would prudent be a appellant As the has crossed the statuto- course and would further purpose ry eligibility, threshold for fee we turn now judicial resources, conserving provided to the determination of the amount of fees such negotiations do place the inter- to which is entitled. attorney ests of the against the interests of Hensley, supra, Court stat- his client. The Court encouraged by ed: parties’ representations willingness of a plaintiff Where a has obtained excel- attorney resolve fee issues future cases. results, attorney lent should recover fully compensatory Normally fee. FARLEY, Judge, IVERS, with whom encompass will all reasonably hours ex- Judge, joins, concurring: pended litigation, on the and indeed in exceptional some cases of success today The Court resolves EAJA issues may justified. enhanced award in the context of a agreement these circumstances the fee award parties. entered into In the course should not be simply reduced proceedings, suggest- plaintiff prevail failed to every on ed that practice follow the lawsuit_Liti- contention raised settlements that adopted with re- gants in good may faith raise alternative spect to EAJA issues the context of legal grounds outcome, for a desired and remands, i.e., that we consider rejection the court’s of or failure to limited record before the Although Court. reach grounds certain is not sufficient it was not accepted, the Secretary’s argu- reason for reducing a fee. prompt ment did my review our caselaw U.S. 103 S.Ct. 1933. Pursuant regarding applications in cases that settlement, the terms of the the Secre- review, have been remanded. This tary agreed pay turn, all of the led to the conclusion that a course sought appeal. benefits required correction is because the Court

245 answer, m a ei- erroneously they provide and drifted conclusive inexplicably direction, for case. away justification present ther from the substantial Brown, by initially set Stillwell v. mooring that the lack of Respondents contend Vet.App. 6 301-04 justification for the Govern- substantial Mooring: I. The Stillwell and was position ment’s demonstrated “Totality litigation Circumstances” to settle on un- willingness factors,

Test howev- favorable terms. Other er, equally might explain the settlement Stillwell, this Court established example, change a substan- well—for following standard determine by a adminis- policy tive instituted new of the was substan- position The unfavorable terms of set- tration. tially justified: into agreement, inquiry tlement without must the reason- VA demonstrate [T]he settlement, cannot con- the reasons for ableness, fact, and law of the clusively establish the weakness in a matter the VA before position. To hold other- Government’s act and of the action failure to truth wise would not distort the VA, VA in a matter before the based penalize thereby discourage useful circumstances, upon totality of settlements. merits, conduct, given, including reasons consistency judicial with precedent 568, 108 U.S. at 487 S.Ct. posi- with policy respect and VA such “Totality Drift II. The from act, tion, and action or failure to as of the Circumstances” in the record and the reflected on filings parties the Court. before first our “drift” examples One of the “[Rjeasonableness 6 at 302. Brown, wrote, Olney a decision was totality of circum- determined (1994), in Vet.App. 160 which stances, by any ap- single-factor and not at the held proach.” Id. substantially justi level administrative “totality” it was with then test is consistent fied because consistent

This Court’s to consid with the Court’s decision current law. The Court refused Underwood, argument that the Sec Pierce v. er the (1988), L.Ed.2d which level retary’s position S.Ct. the administrative factors specifically substantially justified refused limit because of was not making a which a court can consider in alleged separate and distinct errors other determination: stated in the Board’s decision. The Court reach, last, that, although arguments one of these the merits of wheth- We interest,” “of its consideration perhaps er the District Court abused its discre- it could be finding premature in that tion the Government’s would merits “substantially justified.” raised and on the properly was not resolved little, if parties argue purposes “played that for Both remand regard to the rely courts on “ob- in the remand”. With inquiry role jective argument, we indicia” such the terms of second deemed cover the stage “raising in the agreement, to be smokescreen at the were matter remanded proceedings at which the merits fact that this decided, the interven request parties courts due to and the views of other This, can Vet. they suggest, ing [v. merits. Thurber (1993)].” Al at 163. possibly time-consuming App. avoid invoke the assessing holding actual does process though the inexact “totality standard strength position. of the Government’s circumstances” Stilhvell, it becomes disagree objective hindsight do not While we 20/20 the deter- relevant, not think that the drift toward apparent can be we do indicia justification by joint had in changed [the mination ref reason cited the solely remand], for erence the basis the remand motion is irrelevant wheth Brown, v. begun. Carpenito See also er the on those other (1995) (same author, 7 534 Vet.App. same substantially justified.” issues was Rho citing Olney, refused dan, result: to con Vet.App. added); 12 (emphasis at 58 alleged sider errors the BVA’s decision West, see Stephens Vet.App. also v. 12 115 joint parties’ (1999). not identified motion remand). thereafter, West, Shortly in Jackson v. Brown, speed

In Dillon v. of the 12 (1999), 427 we Vet.App. held that “totality” Vet.App. drift from increased. 8 remanding “it is Court’s order (1995). There, appellant’s, 165 because the claim, consequently language allegations fee contained of er motion, joint upon which evaluation joint rors which were not listed of the basis remand must focus.” motion, the Court classified this as an at added). 12 at 427 Vet.App. (emphasis Ad and, reach tempt to “have the Court back ditionally, we stated that where there ais essence, readjudicate de motion, joint but no remand “in Vet.App. novo.” 8 at 168. The Court order to determine ‘reasonableness’ under that “the Supreme noted Court has ad circumstances’, ‘totality [the request attorney’s monished [that] ‘[a] on Court] must the Court’s remand focus not major fees should result in second language underlying order and the ” litigation.’ Hensley Id. (quoting v. Eck pleadings, including any remand motions erhart, 103 S.Ct. requests (emphasis submitted.” Id. (1983)). 76 40 Declining ap L.Ed.2d “the added). pellant’s invitation to conduct such a ‘sec To determine the Secretary ” major litigation,’ ond the Court held: has demonstrated that his

The fact that the Court’s remand order “reasonable” the administrative only Brown, cited the Austin 6 Vet. [v. litigation stages, looks, the Court “ (1994)] App. 547 error and did not ad ‘relevant, respectively, to the determi allegations dress other of error es native circumstances’ and to the ‘circum tablishes the Austin error alone surrounding stances the resolution of ” catalyst was “the for the remand.” Ol [, 12 dispute.’ Stephens Vet.App. 162], [, ney Vet.App. 7 at those citing [, at (quoting and 118] Dillon 8 “relevant, arguments were not determi 167-68], [, Vet.App. Bowyer 7 Vet. native circumstances” that would shed 552-53], [, App. at Carpenito Vet. light on the reasonableness of the Secre 536-37]). App. at tary’s position. administrative See Bow Jackson, Vet.App. Although at 426. Brown, (1995)]; yer Vet.App. [v. repetition Jackson’s word “focus” Carpenito, supra. appear preclude would not consideration Dillon, 168; see also Locher seemingly other factors as mandated (1996). 9 Vet.App. 535 “totality the circumstances” test of Stilliuell, language appears additional recently, West,

More Rhodan v. have shut door our and limited review Court again arguments refused to consider to such material: joint included motions filed in two consolidated pro- cases but time went When the Court’s remand order arguments so far as to deem such one “irrele vides basis for remand and vant” to a substantial allegations determi does “not address other error”, nation. 12 additional alle- gations Court held that “because re of BVA error cannot be consid- “ solely manded claim based ered to be ‘relevant determinative cir- [Rhodan’s] regulations the reason that PTSD light would cumstances’ shed C.J., (Nebeker, concurring). ... Secretary’s reasonableness rather, fact, being but, major litigation stu second position”, ... constitute diously Hensley attempt to conduct a avoided impermissible “sec- major threshold of entitlement but litigation” of the merits. determination ond wrangling over the amount the contentious (citations omitted) added); (emphasis Id. per amount hour to of hours the dollar also, West, 12 Vet.App. e.g., see Wisner Although awarded. (“It (1999) 330, clear is from the ‘request that a for reiterated “view 2,1998, Court’s October remand order that attorney’s in a fees should not result sec upon the solely Hodge the Court [v. relied ” (487 major in Pierce litigation’ ond U.S. (Fed.Cir. West, 1356, 1361-64 155 F.3d 562-62, 108 (quoting Hensley, S.Ct. 2541 1998)] Thus, apply the Board’s not issue. )), it in of supra adopt did so the context ing regulations is irrelevant those ing of discretion” standard of “abuse justification’ purposes EAJA ‘substantial a review for court’s determination district way in failure was no a basis whether EAJA should be awarded. fees for the Court’s remand case.... lower or Supreme did not re find Accordingly, the cannot that the responsi obligation move the of the court Secretary’s position at the administrative making ble for the threshold substantial substantially in not level cases was these justification determination. justified.”). III. The Need to Re-Anchor developed body ease we have Jurisprudence our that, in the holding law at least instance motion, joint Notwithstanding Supreme a remand Court’s upon the Court Stillwell, in we Secretary’s po guidance will determine whether the our decision justified duty avoided make a determi- substantially sition have our to only was justification to express and issues nation as based considering arguments in ly parties joint “totality of the circumstances” in addressed their submission in the remand of EAJA determinations where substan- order and/or A number of our tive claims have been remanded. We have Court. decisions inexplicably product avoid that the have the need to “a second concluded cited major justification parties’ negotiations during litiga- litigation” as for our claim, e.g., joint allegations phase additional tion motion refusal consider remand, beyond the is not relevant go error and to reason remand, Secretary’s position at joint justification par submissions See, ties, stage, order. Dil the administrative but determina- e.g., the remand justi- tive. If the supra. lon and both The avoid Jackson issue, we major litigation” respect in an fied with to that will ance of “a second in to look a decisional originated Supreme deign no further. Such EAJA context advantages in Hensley, supra; template certainly has its opinion Court’s howev resources, er, proffered requiring judicial rubric less is terms' extent post justification for it is with Stillwell and prior or hoc this limi but inconsistent Pierce, tation, apparent readily not weight. support not bear As is will existing jurisprudence from amply Chief demonstrated statutes or Judge Nebeker Supreme the Federal Circuit. concurring opinion in his Court or Jacobsen and remand major Although joint of a such motions West: avoidance ‘second “[T]he certainly provide guidance can litigation’ when the level of orders is desirable justifica- hourly question, merely making “substantial is the is fees determinations, considered, simply no and is tion” there one factor to be overrid analy- that the adjudicative body support proposition duty den fact, it is do must end there. clear the fee to what sis determines ” Jacobsen, opinion in from Court’s ‘reasonable.’ Pierce, analysis swpra, that the should not 103 S.Ct. (1983))). cannot end Since the L.Ed.2d there. case settled, remanded, today us before Dillon, Following reasoning is not the re-anchor our case to recognized in Court has since numerous However, jurisprudence. it has remand that, opinions determining whether the clear to me our drift become Secretary’s administrative respect to substantial determi- justified, the Court will not nations remanded claims must be cor- allegations consider of error that were in a rected future case. joint addressed in a motion for remand in the Court’s remand order or decision. KRAMER, Judge, concurring: Chief See, West, e.g., Jackson Although majority I concur in the opin- (when Court’s or remand ion, express separately my write dis- provides only der one for remand basis agreement with the views set forth in allegations and does not address other Judge Farley’s concurring statement re- error, allegations of appellant’s additional garding appropriate the standard for de- of error cannot considered to be rele termining whether the vant, circumstances, determinative but substantially justified in was cases where impermissible attempt rather constitute the matter is the Court. remanded major litigation); conduct Stephens second Judge Farley’s do not I share “drift” West, 115, v. Vet.App. 12 118-19 I guilt. regard, note that I au West, 546, In Jacobsen v. 12 Vet.App. Brown, both Vet.App. thored Stillwell v. 6 (1999), 547-48 the Court created a narrow (1994), 291 which forth the “totality set exception general rule that test, and the circumstances” Dillon v. language Court will focus on the Brown, (1995), which, Vet.App. 8 165 ac joint motion and the Court’s order remand cording Farley, to Judge increased “the determining or decision in whether speed the drift” from that test. Ante at Secretary’s position administrative Dillon, setting after substantially justified, holding that lack “totality forth circumstances” justification of substantial could also be test, Secretary’s found that the administra predicated on error that position substantially justified tive pleadings, conceded in merits even respect with to the error that had served though that error had not been a basis for Dillon, the basis remand. 8 Jacobsen, the Court’s remand. See also Court, however, Vet.App. at 167-68. (Kramer, 12 Vet.App. J., at 548 concur declined consider the Secre follow, ring). For reasons that I be position tary’s at the administrative level repre lieve that and its progeny Dillon substantially justified respect with to sent an appropriate evolution of allegations of error were not ad jurisprudence Court’s EAJA would joint parties’ dressed motion for reject Judge Farley’s ap unrestricted or in remand the Court’s remand order. proach determining justifi substantial at Id. 168. The reasoned that such cation respect with to remanded cases. ‘relevant, arguments “were not determina First, light agree tive circumstances’ that would shed I although with the stan- Secretary’s majority reasonableness dard set forth in the opinion (Id. cases, position” at (quot respect administrative 168 that that settled believe Brown, ing Bowyer appropriate 552 standard is not where cases (1995))), addressing argu and that those there is a remand. As to settled cases, caselaw, would to an impermissible ments amount under Court’s when “ ” (Dillon, major litigation’ ‘second into a Vet. enter Eckerhart, App. (quoting Hensley agreement, settlement the case or contro- versy becomes moot substantial-justification and the Court must determination appeal jurisdiction. dismiss the for lack of implement “will ‘request our view that a See Hines v. 7 Vet.App. attorney’s fees should not result in a ” (1994); Derwinski, Bond v. major Pierce, second litigation.’ 487 U.S. order). (per curiam In such a (quoting S.Ct. 2541 Hensley, circumstance, the Court does not evaluate ). Thereafter, supra Commissioner, adjudicate arguments positions Jean, 154, 156, INS v. 110 S.Ct. parties prior to disposition on the (1990), 110 L.Ed.2d 134 Supreme merits, merely dismisses the in Court addressed prevailing “whether a accordance with Rule 42 of the Court’s party ineligible for fees for the services Rules of Practice and Procedure. See rendered [litigation over the fee Bond, Hines and both supra. in request] unless the Government’s cases, cases, settled unlike in remanded in the litigation fee itself is not ‘substan ” the Court’s consideration at the EAJA tially justified.’ In rejecting govern stage allegations of error that were not court, ment’s that the district be addressed in the Court’s dismissal order or fees,” fore awarding “fees for must make a parties’ agreement in separate finding of justification order to determine substantial government’s as to the position during the “ would not result in an impermissible ‘sec litigation fees, over major litigation’” merits, ond be requirement noted that such a “would mul cause there in actuality no initial mer tiply litigation” and stated that re “‘[a] adjudication. Dillon, its 8 at 168 quest attorney’s for fees should not result (quoting Hensley, 461 at U.S. 103 major Jean, in a second litigation.’” 1933). S.Ct. U.S. (quoting S.Ct. 2316 Hens Second, believe, I Judge Farley, unlike ley, supra). cases, In view of these which that Supreme Court’s admonition that erect barriers to separate determinations request attorney’s “[a] for fees should not regarding justification substantial at dif (Hens major result in a litigation” second action, stages ferent of a civil I believe that ley, supra) fully applicable to the Supreme jurisprudence Court Court’s determinations respect with preclude does not our reliance Hens justification substantial under the EAJA. ley’s major “second litigation” concept as a Although Judge Farley correctly notes basis for the approach Court’s Dillon that the in Hensley reference to avoidance substantial in remanded cases major of “a litigation” second was made in that appears provide also support the context of reviewing a determination for such an approach. award, as to the amount nothing fee Third, I precedential opin believe that Hensley suggests that that principle ions of the Appeals United States Court of should be limited to that context. See (Federal Circuit), for the Federal Circuit Indeed, Hensley, supra. principle bound, which support this Court is also has applied by Supreme been approach. In Keely Sys. v. Merit reviewing attorney-fee other facets of liti Bd., (Fed.Cir. Protection gation, F.2d including regarding issues substan 1986), justification. Underwood, petitioner, having pre tial after Pierce v. underlying vailed on the merits and on an U.S. 108 S.Ct. 101 L.Ed.2d (1988), appeal respect Supreme request to his for at deter fees, torney mining applied expenses the United States fees and Court of Appeals litigation for the Ninth connection with Circuit had been over his enti in applying attorney correct tlement to “abuse of discre fees. Id. at 1274-75. tion” standard in reviewing government urged a district The the Federal Circuit jus award, court’s determination as to requested to reduce the arguing, tification, alia, stated that deferential review petitioner inter that the had achieved position was sub- retary’s administrative sup at 1275. In Id.

only limited success. government stantially justified. argument, of that port disregard Circuit “to urged the Federal merits, and underlying litigation on the STEINBERG, concurring: Judge, solely the obtained [results address litigation for fees.” Id. subsequent

the] join opinion and write the Court’s position, the rejecting government’s only because I believe that our separately it was “dis stated Federal Circuit colleagues mischaracterize the dissenting attempt, [government’s] turbed today holding that the majority’s action obtained, to restrict analyzing the results (Board) Appeals Board of Veterans’ dispute. focus to the fee our or bases adequate to state reasons “fail[ed] request for cautioned that ‘[a] Court has J.), (Holdaway, its decision.” Dissent not result a sec attorney’s fees should done so. at 251. We have not infra view, adopt In our major litigation.’ ond majority approach Although I believe that ing [government’s] encourage dissenting a second opinion effectively obtained would rebuts those results (quoting Id. at 1276 major litigation.” contentions, repeating it bears omitted). ) (citation Fur Hensley, supra today not hold that the Board does ther, Transp., Department in Naekel v. a statement decision on contained (Fed.Cir.1989), FAA, 884 F.2d 1378 inadequate or bases that was of reasons gov determined that the Federal Circuit 7104(d)(1). Rather, under 38 U.S.C. had not shown ernment holds “that the that, substantially justified, stating proving that the met his burden government reargues the “[although the States at the administrative United merits, attorney’s fees ‘request substantially justified.” Ante at level major litiga in a not result second ” Naekel, (quoting 884 F.2d tion.’ “[a]ny Holdaway asserts that Judge ). Thus, has the Hensley, supra validity regarding that, opinion of Court suggested Keely Circuit Federal appellant’s] allegations of error is litigation, emphasize [the it will resolving fee In- advisory premature”. during litigation completely occurred what connection, merits, clearly In that he cor- it also has at 251. is underlying fra in Naekel that merits determina briefed stated rect that Court has not been “[t]he litiga fee tions not be made on these issues”—at least not Sec- an that to do so would constitute provided tion and has retary. Ibid. The major litigation.” impermissible “second However, briefing. the reason we fully briefed is because the have not been sum, I believe that both appel- Secretary respond failed to sup- precedents and Federal Circuit Court assertions, lant’s even after the that, existing precedent port our argument that he was conceded oral has stage at the merits where given he had been aware of them and after parties’ arguments and is- considered the to address them. “ample opportunity” remanding the an order or decision sued 241. Because “the Ante at matter, remand order or it is Court’s Depart- proving that [the the burden any joint underlying motions decision was substantial- (as Affairs] ment of Veterans any well as that order or today ly justified position”, in its the Court parties’ made in the of error concessions Secretary “offer[s] that when the holds fo- properly should be the pleadings) argument neither nor evidence” this Court substantial-justification de- point cal substantially justified position was that his allega- additional and that termination not, that it was appellant alleges by after the not be considered tions of error should provide a basis for that default alone can determining whether the Sec- the Court grant prejudice. the Court to for attor- Any opin- been dismissed ney expenses Equal regarding validity fees and under the ion of the Court 2412(d) Act, allegations Access to these completely Justice U.S.C. of error is (EAJA). advisory premature. Ante at 243. The Court has

not been briefed on these issues and there way no to determine how the Court HOLDAWAY, Judge, with whom would have decided this case on the mer- GREENE, joins, Judge, dissenting: its. The fact of the matter is that respectfully holding dissent with the of Secretary granted change benefits due to a majority. This matter was taken be which, in the law under this Court’s case fore the en banc court what decide law, position substantially justi- makes his evidence the Court should consider de fied, and appellant’s application termining whether the fees must be denied. substantially justified. original Furthermore, majority the en banc’s decision, panel which has since been with opinion putative holds that the Board’s drawn, majority held that error, for which grant predi- the EAJA “totality drifted from the of the cir cated, was adequate failure to state rea- cumstances” test set forth sons or Elcyzyn bases for its decision. In Brown, Stillwell v. (1994), 7 Vet.App. 170 this Court opined dissent the Court had not government held merely drifted from Stilhvell but evolved justified was not when the body into narrower of evidence the Court give Board adequate failed to reasons or would in determining consider bases for its decision. I do not believe

justification. Unfortunately, in debating correctly this case was decided and I theories, the intricacies of their both sides believe that opportu- this Court missed an sight lost particular the facts of this nity to overrule this decision en banc. No may case. While such a debate make an country other court in the awards EAJA enlightening topic for a law school class or liberally impor- fees as as this one. More article, a law review purpose of an tantly case, to the facts of this no other appellate practical: court is much more federal court awards EAJA fees when apply the law to the facts of the case agency appropriately fails to articulate hand. reasons for its administrative decision. Sullivan, The issue before the example, Court is whether For Stein v. (7th appellant Cir.1992), is entitled to reimbursement F.2d 317 U.S. Court majority under correctly Appeals EAJA. As the for the Seventh Circuit remanded stated, show, Secretary may Security as an the claim for Social dis- defense, positions ability affirmative his be- benefits “so that [of fore this and the Board were sub- Health and Human articu- Services] could stantially justified. my opinion, In completely under late more its assessment of the test, regarding whether it be the en ma- banc’s relevant evidence the onset of jority opinion, panel’s majority opinion, disability.” Stein’s 966 F.2d at 319. After panel’s dissenting opinion, or the being sought, the Sec- awarded the benefits fees, retary position has shown filed for EAJA and was justified. Here, substantially in pertinent part Secre- denied the U.S. Dis- tary agreed to award benefits based on a trict Court for the Northern District of change appeal, the law. Whether or not the Illinois. On the Seventh Circuit opinion would have been entitled to ben- affirmed the district court’s change efits but for law

wholly Any arguments justified though irrelevant. even he had failed to ade- prior presented quately reasoning claims under law have articulate his The reasons or bases for its decision would not denial of the benefits. grounds granting EAJA fees. Circuit held: Seventh recognized court While the [district] Moreover, if, wisdom, even our we requiring of the rule the Sec- existence find the reasons or bases to have been retary to articulate his assessment here, certainly no inadequate there were evidence, court noted the district from this that would have cases of articulation is far from the level Board, reasonably suggested to the at the agree. requirement precise. We The decision, regu- time it reached its that the that the ALJ articulate his consideration putatively from their deci- lation omitted deliberately of the evidence is flexible. sion, had relevance this case. The potential regulation, articu- relevance of the That the ALJ failed to meet this majority, stated is a matter of first requirement way lation in no necessi- impression that under Stillwell would have finding Secretary’s po- [that] tates compelled this Court to have found the substantially justified. sition was not Secretary’s substantially jus- position to be “Substantially justified” does not mean briefed, argued, tified had the issue been “justified high degree,” to a but rather thereon, and a decision rendered none if is a has been said to be satisfied there effect, happened. which In peo- if “genuine dispute,” or reasonable position was not finds the Board’s substan- ple appropriate- as to the could differ its, tially justified I failed ness of the contested action. As the suppose, prophetic duty to look into its noted, correctly district court we did crystal ball and determine that this Court opinion find in our earlier that the Sec- regulation possibly applica- would find the retary justification. lacked substantial ble. only that con- We held there was some trary that the failed evidence I bring also the Court’s attention to a consider, or at failed to articu- least “totality definition of of the circumstances”

late that he considered. There was evi- majority. In apparently eluded the Secretary’s support posi- dence to U.S., Chiu v. the Federal Circuit held that genuine dispute tion. A existed. entirety courts at the must “look court’s we detect no error the district government’s judg conduct and make a Secretary’s finding that the government’s ment call whether the over substantially justified. all reasonable basis both (Fed.Cir. law and fact.” F.2d (citations omitted). Id. at 320 1991) added). doing, (emphasis so sum, grants that this believe rejected Federal Circuit the en banc ma many applications contrary far too jority’s holding government’s posi that the Congress in express intent of draft every jot tion must be correct as to ing here is the EAJA statute. issue By turning plain meaning of tittle. divergence between illustrative of “totality phrase of the circumstances” on jurisprudence this Court’s EAJA and the head, majority its who to be is the seems Cf., consensus in other federal courts. doing unacceptable; searching what it is to Sisk, Gregory C. The Essentials find an error “to ensure an award of EAJA Equal Access to Justice Act: Court fees.” Attorney’s Fees Awards Unreason for Conduct, Finally, my position that I able 55 La. L.Rev. will reassert Government begin to do not believe that EAJA fees should be This Court should consistently granted appellant’s at- interpret the EAJA statute cases where the torney appearing pro bono. is a step with other federal courts. The first is EAJA shifting or fee statute for process Elcyzyn. in that is to overrule reimbursement standard, attorney expenses. fees and See 28 U.S.C. putative Under this error 2412(d)(1)(A) (stating may § that a court failing provide adequate the Board of legal by party” signed prevailing parties award fees “incurred to reimburse prevailed against who in the action fact, say fees “incurred.” In Ehrler, government); Kay v. “ignored” language has of the statute 113 L.Ed.2d S.Ct. circumventing plain a meaning its (holding attorney that a pro eligi- se is not euphemism. per- These decisions have ble to be reimbursed under EAJA because meaning by indulging verted its in an anal- fee); U.S., he has not incurred TGS which, effect, ysis says that the fees are (Fed.Cir.1993) (“In 983 F.2d its incurred as a result the successful requirement that the fees have ‘in- been short, application! EAJA a successful 2412(d) by party, § curred’ differs (after applicant incurs fees the case 2412(b) from fee-shifting and other stat- over), applicant while an unsuccessful utes that authorize the award of ‘a reason- not. does It is unfortunate that this Court fee”); attorney’s able Paisley, U.S. v. goes along with this charade. (4th Cir.1992) (EAJA F.2d 1161 award not prevailing available party did not My purpose discourage is not to attor- any legal “incur” if expenses legal ex- neys participating from The Veterans penses would have been covered third Consortium Program, Pro Bono for I com- party). If appellant has not incurred mend them for their excellent work in fees, any attorney nothing there is reducing pro appellants the number of se appellant. which to reimburse the A.Cf. pro before this Court. As is true with all Hirsh, U.S., Inc. v. 948 F.2d work, bono the reward is obtained (Fed.Cir.1991) (stating that EAJA reim- representing indigent satisfaction of bursement is not party available for a who party compensation, without who other- “undertakes litigation as a volun- wise would not be able to teer”). secure counsel. The reward being come from case, In this the Veterans Consortium “pro representa- reimbursed bono” Pro Program requested stay Bono tion. Getting pro fees for bono work ais proceedings order to attempt to obtain contradiction in My opinion terms. is that counsel for this who had been statute, written, currently proceeding pro efforts, does not Through se. Consortium obtained the payment authorize under if pre- EAJA the 22, 1999, counsel of July ap- record. On vailing party any attorney did not incur pellant’s Appear- counsel filed a Notice of By fees. creating legal holding fiction in ance, in which he certified that “I am appellants attorney have incurred participating in The Veterans Consortium fees, tunc, cases, pro pro nunc bono Program my Pro Bono representation language Court has rewritten the charge is without appellant.” As a Congress change statute. If desires result, has not incurred statute to award pro EAJA fees for bono and, therefore, attorney fees in this counsel, it province, is within their and not appel- there is no need to reimburse the Court’s, appropriate to make the lant. An action for EAJA fees is an action Lastly, I express personal amendments. appellant, attorney, not his and is hope attorneys pro who volunteer for entirely purpose of reimbursing representation bono through The Veterans him attorney for fees incurred. His Program, Consortium Pro Bono receive independent indepen- neither action nor pro bono credit from their state bar for recog- dent entitlement to EAJA. While I representation, granted are nize that this Court and other federal fees, would donate those fees courts have payments allowed EAJA may they Consortium so that further assist counsel, pro doing, bono in so these courts indigent finding representation in veterans ignored plain language have statute which states that de- EAJA is before this Court. became conclusion, what evi- tion with regardless of a document filed with part of the record as to determine whether

dence is used Although the ma- jus- application. the EAJA Secretary’s position was Secretary was aware jority notes that the tified, there are I do not believe potential a in that Mr. raised this as fees this Cullens for an award of EAJA grounds error, Judge Holdaway agree I Board under circumstances. case appellant would that whether or not the GREENE, Judge, with whom entitled to benefits have been HOLDAWAY, Judge, joins, dissenting: in irrelevant. change the law is the Board addressed the section Holdaway’s It join Judge I dissent. 21.3032(b)(3) good exception cause landscape of a view of the provides clear Secretary raised this created issue ad- offers a well-stated observa- this case and dressing substantial likewise concerning general posture tion Nevertheless, majority (EAJA) is irrelevant. appli- Act Equal Access to Justice has stretched to reach result does sepa- I write filed with this Court. cations factual basis of the comport with the my disagreement with the rately to stress recognize provisions all of the case or majority’s on the failure of the reliance regulation involved. Section adequate statement of provide Board to 21.3032(b)(3)requires claimant to file a addressing for not VA reasons or bases 21.3032(b)(3) to file matters to request for extension § regulation 38 C.F.R. claim, request in that complete a required good why cause “as to show majority opinion asserts been taken action could have substantially justified in Secretary was not original period time and could not have case because the Board’s 1998 this taken sooner than it was.” Mr. Cul- been adequate of reasons lacked an statement request did not file an extension lens It concluded that the Board or bases. had, any separate even if he denial is impact potential have discussed the regulation. appealable issue under 21.3032(b)(3) regulation 38 C.F.R. VA Therefore, join in the cannot extending good cause Mr. Cullens’ that EAJA fees should be awarded this per- filing of enrollment certificates to late case. his claims for educational assistance. fect However, view, my this is-

agreement this case eliminated

sue, if it indeed ever existed. case, agreement the settlement that Mr. Cul- parties’ manifests the intent STUCKEY, Appellant, Harold be awarded benefits based lens would change in the law. Pursuant agreement, appeal filed that settlement Anthony PRINCIPI, J. attending and the issues to this Affairs, Appellee. Veterans Board decision were arising from the 1998 No. 96-1373. prejudice. that dis- dismissed with With not have been position, there should Appeals United States Court controversy requiring liti- further areas of Claims. Veterans Indeed, view, my by agreeing gation. settlement, Mr. Cullens to the terms of the Jan. any arguments of error

waived 31, 2001. As Amended Jan. Further, alleged er- Board decision. HOLDAWAY, FARLEY, Before concerning of Section ror IVERS, 21.3032(b)(3) Judges. mo- was raised an unfiled

Case Details

Case Name: Cullens v. Gober

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Jan 17, 2001

Citation: 14 Vet. App. 234

Docket Number: 99-364

Court Abbreviation: Vet. App.