Lead Opinion
On July 26, 1994, in a single-judge memorandum decision, the Court denied the appellant’s application for an award of attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d),
The appellant, Odessa Gregory, has applied for an award of attorney fees under the EAJA in connection with the representation of the appellant in this Court by William G. Smith in Gregory v. Brown,
I. Background
In March 1991, the Board of Veterans’ Appeals (BVA or Board) denied the appellant recognition as the surviving spouse of the veteran for purposes of VA death benefits. The appellant appealed this decision to the Court on June 3,1991. The Secretary filed a motion for summary affirmance in response to the appellant’s informal brief. Because the case presented questions of first impression, the Court ordered supplemental briefing on April 13, 1992. William G. Smith entered his appearance as the appellant’s attorney on June 29, 1992.
On May 13, 1993, the Court issued its decision in Gregory, supra, vacating the March 1991 BVA decision and remanding the matter for further proceedings. Gregory addressed the statutory and regulatory framework of 38 U.S.C. § 101(3) and 38 C.F.R. § 3.53 (1993). First, the Court upheld the BVA’s determination that the appellant had not lived with the veteran continuously from the date of their marriage to the date of the veteran’s death as not clearly erroneous. Gregory,
II. Analysis
The Court in Stillwell, supra, denied the application for EAJA fees, finding that the government’s reliance upon 38 C.F.R. § 3.53(a) prior to the issuance of the Gregory decision was substantially justified. Equally applicable here, the Court in Stillwell stated:
While the BVA incorrectly applied the law and erred in so doing, we are not oblivious to 38 C.F.R. § 3.53(b) [1993].... It is true that this provision is a shield to be used by a spouse, rather than a sword to be used against a spouse, in cases of separation by mutual consent not involving misconduct. Nevertheless, the VA may have reasonably, although incorrectly, inferred from the use of the word “desert” in 3.53(b), a need for continuing faultless conduct after separation in cases not involving separation by mutual consent. Cognizant of the fact that the statutory and regulatory framework presents a “confusing tapestry,” Hatlestad v. Derwinski,1 Vet.App. 164 , 167 (1991); Ryder v. Derwinski,1 Vet.App. 221 , 224 (1991), in which the meaning is not easily discerned, the BVA’s misinterpretation appears to be no more than a reasonable mistake.
Stillwell,
Applying Stillwell here, the Court finds that the government’s reliance upon § 3.53(a), both prior to and during the litigation before this Court, see id. at 302, was substantially justified. VA’s interpretation of 38 U.S.C. § 101(3), including its use of the appellant’s post-separation conduct, to deny
In reply to the Secretary’s response to the appellant’s application for EAJA fees, the appellant argued that Stillwell was distinguishable from the instant case, and thus did not govern its disposition. Reply at 2. Contrary to the appellant’s argument that the Court in Gregory specifically ruled that the BVA’s findings of fact were clearly erroneous, id., the Court made no such ruling. In fact, as noted supra, the Court in Gregory sustained the BVA’s factual finding as not clearly erroneous. Furthermore, the appellant’s remaining arguments — that the Court in Gregory specifically held that the BVA used an incorrect standard of proof to determine whether the appellant and the veteran had reconciled, that the BVA failed to obtain Social Security records, and that the BVA failed to apply 38 C.F.R. § 3.53(b) requiring acceptance of the surviving spouse’s statement as to the reason for the separation in the absence of contradictory information, id. at 2-3 — cannot prevail as grounds for distinction in that none of these matters constituted a basis for the Court’s action in Gregory. Rather than constituting a holding of BVA error, the Court merely instructed the BVA to comply with Gilbert v. Derwinski,
III. Conclusion
For the foregoing reasons, the Court denies the appellant’s EAJA application.
Dissenting Opinion
dissenting:
The majority denies the EAJA application on the basis of the Court’s opinion in Still-well and goes to considerable lengths to specify why Stillwell may not be distinguished from the instant case. The majority fails to note, however, that Stillwell is on appeal to the U.S. Court of Appeals for the Federal Circuit, where an appeal was docketed on June 20, 1994.
Given the majority’s dispositive reliance on Stillwell, it seems undebatable that if the Federal Circuit reverses this Court’s opinion in Stillwell and orders the award of EAJA fees and expenses, or even remands for further consideration by this Court with the result that such an award is ultimately made, then the instant EAJA application will have to be granted.
Accordingly, I would hold this application in abeyance pending disposition of Stillwell in the Federal Circuit. I see no reason to require the applicant here to bear the cost of an appeal to that Court, in order to preserve EAJA options, or to impose an additional and possibly avoidable filing on that Court. Alternatively, the applicant could move this Court, within the time period provided under Rules 26(e) and 35(d) of the Court’s Rules of Practice and Procedure and pursuant to Rules 35(a) and 36 of those Rules, to hold the judgment here in abeyance pending disposition of Stillwell in the Federal Circuit.
For the foregoing reasons, I would not today reach the merits and therefore respectfully dissent.