Elie Halpern v. Anthony J. Principi
17 Vet. App. 225
Vet. App.
2003
Check Treatment
Docket

*1 (2001) (re Principi, 15 “catalyst” theory), appeal dis

jecting per stipulation, WL

missed 2002)

(Fed.Cir. Aug.20, (dismissing appeal light motion in of Brick

upon Contractors, States,

wood Inc. v. United (Fed.Cir.2002) (holding

288 F.3d

“catalyst theory” support not available to EAJA)). attorney

award for fees under eligible

Accordingly, attorney

under the EAJA for award of appeal related to her Sumner, see at Briddell,

264-65; I, Vaughn Thayer,

all and her must supra,

fail, Sumner, 265; see Brid

dell, Vet.App. at 275-76.

III. Conclusion foregoing

Upon consideration

analysis pleadings parties, and the December

application is denied.

APPLICATION DENIED. HALPERN, Appellant,

Elie

Anthony PRINCIPI, Secretary J. Affairs, Appellee.

Veterans 99-1472(E).

No.

United States Court of

for Veterans Claims.

Aug.

226 it

erred when determined it lacked jurisdiction appellant’s application over attorney pursuant for fees to the EAJA. (Fed. Halpern Principi, v. 313 F.3d 1364 Cir.2002). The Federal Circuit then re decision, versed the Court’s and remanded FARLEY, IVERS, Before and proceedings the matter for further consis STEINBERG, Judges. opinion. tent with its Id. appellant The Court notes sub ORDER original application mitted his EAJA on PER CURIAM: 16, Secretary October 2000. The submit response appellant’s applica ted a to the appellant’s appli Before the is the 9, January appellant tion on 2001. The payment attorney cation for of fees and $4,637.02 reply Secretary’s a to submitted re expenses pursu the amount of 17, 29, January May sponse on 2001. On Equal ant to the Access to Justice Act 2001, decision, (EAJA), § the U.S. 28 U.S.C. The Home, Buckhannon Board and Inc. appellant application submitted his EAJA Care 16, 2000, v. Virginia Department on West Health October after the a of Resources, 598, 26, 2000, order, and Human 121 September a 532 U.S. vacated June 1835, (2001), 30,1999, 149 L.Ed.2d signifi decision of the Board of S.Ct. 855 Veterans’ (Board BVA). cantly changed Appeals prevailing-party jurispru or on Based During years dence. attorney Board’s more than two review Board, agreement, parties original fee in a since the submitted their June 1999 decision, pleadings, significant changes EAJA have attorney found that the was not occurred this Court’s EAJA caselaw as eligible payment attorney for direct fees e.g. well. past-due appellant Principi, from The and See Sumner v. 15 benefits. Vet. (2001) (en banc); Secretary App. Flemming 256 v. filed briefs before the Court in (2002); Principi, 16 February July respectively, Vet.App. 52 Sachs v. Principi, September appellant filed On 10, 2003, March the Court ordered both unopposed motion to vacate and set juris parties lack of to submit memoran- aside the Board decision for Gober, pursuant addressing changes diction v. 14 da in the Court’s Scates (en (2000) banc) curiam). (per EAJA caselaw since the submission of the 26, 2000, original pleadings impact The EAJA and the September Court’s order changes upon vacated those the outcome in this the Board’s decision and remand case. ed the matter to the Board based on the 14, 2000, appellant’s unopposed September jurisdiction “The Court has to award

motion. attorney reasonable 2412(d)(2)(F).” 8, 2002, February On pursuant the Court deter to 28 U.S.C. Gober, jurisdiction mined that it lacked over the 14 Vet.App. Cullens (2001) (en banc). appellant’s application attorney for fees The pursuant Halpern application 30-day to the EAJA. v. Princi filed within the (2002) pi, (per application period curiam set forth order). 2412(d)(1)(B) On December the U.S. U.S.C. and satisfies the jurisdictional Court of for the requirements Federal Circuit EAJA content (Federal Circuit) held that this Court because the contains the follow (1) that, by concession of status is showing “[a] A virtue ing: remand, prevail binding is a and cannot on the be re- Court’s EAJA; meaning Id. ing party litigated point.” within The eligible for showing that he is upon Flemming, supra, support relies *3 the because his net an award under EAJA prevail- his contention that a concession of (3) $2,000,000; not exceed worth does ing-party binding may status is not be allegation position that the Secre changed by Secretary. the Id. The Secre- substantially justified; and tary was not tary the appellant’s argu- does not address statement. See 28 an itemized fee by regarding being ment bound an earlier 2412(d)(1)(A), (1)(B), (2)(B); § U.S.C. prevailing-party status in his concession 204, Principi Thayer v. memorandum the supplemental because (2001). requested supplemental Court memoranda parties simultaneously from both no with above, eligi in to be As noted order opportunity respond to the other sides pursuant ble for fees to the EAJA an arguments. Secretary The contends in his applicant “prevail must show that he is a supplemental appel- memorandum the 2412(d)(1)(A); ing party.” see 28 U.S.C. party lant a prevailing under current Cullens, EAJA, “a supra. Under the not agree caselaw. The Court does with prevailing party court shall award to a appellant’s characterization of Flem- than the fees and oth other United States ming binding Secretary previ- as to his by ... in er incurred prevailing-party ous concession of status. by any brought against civil action ... or In Flemming, the Court does not address any having in the United States ” Secretary the issue of whether is jurisdiction action.... of that 28 U.S.C. by.his of prevailing-party bound concession Prevailing-party status In Flemming, status. the entire discus- requires receipt either “the ultimate of a Secretary’s regarding sion concession sought bringing that was in benefit as follows: prevailing-party status is i.e., benefit, litigation, the award of a or at examination, it Upon closer is clear that minimum, predicated a court remand recognition of the appellant the Court’s Sumner, 15 upon administrative error.” Brown, Vet.App. in [v. Stillwell Sumner, at 264. In the Court (1994),] prevailing party as a was based concluded that “a remand does not consti Secretary’s on the concession to that relief the merits’ unless that tute ‘some on status, apparent rule drawn and on the predicated administrative, remand is on er [, 509 v.] from U.S. [Shalala Schaefer in ror.” Id. The Court’s decision Sumner 292, 2625, L.Ed.2d 239 113 S.Ct. expressly upon holding relied and ra (1993)], by party prevailed that a virtue in Buckhan tionale of the receiving a remand. non, supra. That obser Flemming, appellant argues supplemen- his The in the context of the vation was made prevailing tal memorandum that he is a factual circum Court’s discussion party. Appellant’s Supplemental Memo- present pre-Buckhannon stances . (Suppl.Mem.) at 1. He also con- randum Sumner, Stillwell, case of and the effect of pleadings, the Secre- “[i]n tends that both supra, prevailing-party status. tary Appellant conceded that was a January only Secretary in his prevailing party argued that the The Secretary substantially justified.” response Id. to the was whether the at 2. further asserts that did not address The therefore, application must be rath- his EAJA party, but prevailing Flemming, supra. denied. See Sachs and er, a substantial- response with began his though Even justification argument. foregoing, it is Upon consideration status Secretary prevailing-party conceded that the ORDERED the Court ordered response, original his DENIED. application is briefing parties. from the Secretary’s con- that the The-Court holds STEINBERG, Judge, concurring: status is not cession as Gober, Vet.App. Swiney v. binding. See that un agree I with the Court’s order Clearly, when Flemming precedential opinions der the *4 in status Janu- conceded (2002), and Principi, Vet.App. v. 16 52 to that it was futile ary recognized he (2002), 414 Principi, Vet.App. v. 15 Sachs under then prevailing-party status dispute prevailing party. was not a appellant the However, noted as the Court current law. However, my forth in for the reasons set in briefing when it ordered Flemming, supra, in it is separate opinion case, landscape regarding legal the my that under the rule of retroactive view (here changed status has sub- prevailing judicial our application of decisions Buckhannon, stantially Gober, in aftermath of 14 Vet.App. the in v. opinion Scates (2000)) a the should be held to supra. be Flem

prevailing party under the EAJA. J., the September (Steinberg, On at ming, Vet.App. 55-59 Court, grant in by concurring part dissenting part). order of the Clerk in to for the Ninth appellant’s unopposed the motion The U.S. Court of ed recently addressed the retroactive the Board decision for Circuit vacate and set aside statute, Scates, judicial interpretation of a effect jurisdiction pursuant to su lack of and held: sole and remanded the matter. The pra, due to the for the remand was basis Moreover, Supreme the Court’s inter Scates, in in which was change caselaw in pretation of 25 U.S.C. 357 Minnesota during pendency appeal. issued [ States, 382, 59 United 305 U.S. v. Sachs, In held that “a remand (1939),] 292, 83 L.Ed. 235 cannot S.Ct. rule of on the merits that is based operative “change” be considered a is not a remand application retroactive theory judicial interpreta law. The of a upon administrative error for predicated interpreta a that the tion of statute is Therefore, pur for purposes of EAJA.... gives meaning tion of the statute expenses, of EAJA poses merely not inception, from its and does prevailing party a as a appellant is not interpretation to used from give an be mer result of the Court’s decision [on the decision. Rivers v. the date of Sachs, 416; Vet.App. at see also 298[, its.]” Roadway Express, 511 U.S. (“[A]n Flemming, appel at 54 1510, 128 L.Ed.2d As 274] S.Ct. under the rule of receiving lant remand explained by was is, appel Rivers, that application, judicial retroactive of a construction “[A] solely lant who receives a remand because an authoritative statement of statute is change during pen in caselaw meant before as well as what the statute giving an EAJA decision of the case rise dency appeal, of his or her after the at that construction.” 511 U.S. 312- prevailing party.”). The Court holds ]13[, 114 prevailing S.Ct. party, [ 1239]. is not a Tacoma, v. City United States 332 F.3d (9th Cir.2003). 574, 580-81 my I separate opinion

As concluded 59-62,

Flemming, and as I my separate

also concluded in opinion

when prior this case was before us by jurisdic

reversal the Federal Circuit on grounds, Halpern Principi,

tional J., (Steinberg, relief) *, rev’d,

concurring the denial of (Fed.Cir.2002), deny

313 F.3d 1364 I would

the EAJA here on ground has demonstrated that position

his at both the administrative and

litigation stages substantially justified

under 28 U.S.C. See Cul Gober,

lens v. 14 Vet.App. 237-38

(2001) (en banc); Brown, Lematta v. VALIAO, Appellant,

Mamerto D.

Anthony PRINCIPI, Secretary J. Affairs, Appellee.

Veterans

No. 02-754.

United States Court of

for Veterans Claims.

Aug.

* When this EAJA was before the Halpern, at 419. initially, I dissented from its dismissal.