Hudson v. West
13 Vet. App. 470
Vet. App.
2000
Check Treatment
Docket

*1 HUDSON, Appellant, C. Walter Jr., Secretary

Togo WEST, D. Affairs, Appellee.

Veterans

No. 97-1220. Appeals

United States Court of

for Veterans Claims.

April 2000. Wildhaber, Washington, E.

Michael D.C., was on the for the lant. Counsel,

Leigh Bradley, A. General Ron Garvin, Counsel, Assistant General Thom- McLaughlin, Special as A. Assistant to the Counsel, R. Ka- Assistant General Michele tina, D.C., Washington, plead- were on the appellee. NEBEKER, Judge, Before Chief STEINBERG, Judges. HOLDAWAY and HOLDAWAY, Judge, opinion filed the STEINBERG, Judge, the Court. concurring opinion. HOLDAWAY, Judge: This case is before the Court on the аppellant’s application for an award of at- torney Equal under the (EAJA), Act Access Justice In the case on the merits, appellant appealed May (BVA Board Veterans’ Board) decision which found that he had not submitted new and material evidence *2 Brown, in Vet.App. order to his claim for a mеntal vor. See Grivois (1994). Court, appeal pro disorder. On to this The EAJA statute Secretary regional conceded that the VA that: vides (VARO) by failing

office had erred to issue prevailing court shall award to a [A] (SOC) a Statement of the Case after the party other than the United States fees appellant had filed а Notice Dis expenses by and other that incurred (NOD) agreement to November 1993 ..., party any in civil brought by action holding VARO decision. Pursuant to its in against or the United States Brown, (1995), Tablazon action, jurisdiction court that found that the November 1993 position unless the court finds that the yet VARO decision had not become final as substantially of the United States was error, a result of the preclud VARO’s thus justified special or that other circum- jurisdiction exercising the Court from unjust. stances make an award over the matter. Since it did not have 2412(d)(1)(A) (emphasis 28 U.S.C. add jurisdiction matter, the Court dis ed). Therefore, may a Court not award appeal missed the in a 1999 memoran jurisdiction EAJA fees it had unless to noted, however, dum decision. The Court award requested during the relief the mer appellant’s that claim before the litigation. Heath v. open VARO was still and accordingly, the It is clear from the appellant adjudication was entitled to at 1999 memorandum decision that the Court the Board lеvel for his of the No jurisdiction did not have over this matter vember 1993VARO decision. as a result of the procedural VARO’s de Nonetheless, appellant argues fect.

Subsequently, filed a time- jurisdiction that ly application grant the Court has to attorney fees and ex- attorney him penses pursuant fees under to Secrеtary under EAJA. The EAJA re- (AWA), All sponded Writs Act application by to this 28 U.S.C. arguing that above, 1651. As stated order for the Court to award fees, that believes was the functional jurisdiction the Court must have equivalent of a for a writ of man action. Since the Court damus and his jurisdiction found that it for EAJA fees did not have should be treated if as he had filеd such a Board decision and dis- petition. appeal, Secretary missed the averred must AWA, Under all federal also jurisdiction. be dismissed for lack of jurisdiction courts have to issue writs “nec countered ‍​‌‌‌​​‌‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​​​‌‌‌‌​‍the essary appropriate in aid of their re argument by stating that his jurisdiction.” spective equivalent the functional to a writ of man- 1651(a). designed pre The AWA is to damus, pursuant “catalyst to the theo- being vent the Court’s from ry” prevailing party he is the and entitled by an unlawful frustrated act of or a fail Furthermore, to EAJA fees. ure to act an inferior tribunal. See argued may lant grant- EAJA fees be generally, at 402-03. ed for writs of mandamus where the Cоurt “jurisdiction This has to held potential underly- pursuant issue a writ of mandamus to the ing matter and thus the Court could award not actual AWA relies EAJA fees as well. instance jurisdiction.” potential but Id. Therefore, might eventually if the Court

I. ANALYSIS have over the matter if not for EAJA is a waiver sovereign the unlawful actions of or failure to act immunity, tribunal, provisions and its must be an inferior exer strictly government’s prevent construed fa- a writ cise issue EAJA is being from frus under DIS- potential MISSED. course, does not ex Of the AWA

trated. jurisdiction but general pand STEINBERG, concurring: Judge, only for limited is to be rather used *3 it not holds that does have The Court Evaporated v. Milk purpose. See Roche jurisdiction application the pending over Ass’n, 26, 938, 21, U.S. 63 S.Ct. 87 319 attorney under expenses for fees and the West, (1943); v. 149 F.3d L.Ed. 1185 Cox Act, 28 Equal Access to Justice U.S.C. (Fed.Cir.1998); Heath, 1360, 11 1363 Vet. 2412(d) (EAJA), § based at 403 App. single-judge memorandum that the decision dismissed Regardless whether this of jurisdiction. v. claim for lack of Hudson peti a equivalent” the “functional of was (Vet.App. July 1999 WL 554228 mandamus, a writ of the fact of the tion for dec.). 1999) (mem. I Although believe that petition that it not a but an matter is was that was in- memorandum decision does simply apply not appeal. AWA correct, to vote to I am constrained dis- a appellant if does not file for the application miss the EAJA based the thus, writ, and is the AWA not relevant the binding precedential action of Court held that Heath where the Court jurisdic of its in the Court’s examination application it dismiss an EAJA that must the application. tion of EAJA While adjudication is based on a merits juris is that the Court’s correct jurisdiction which the Court had no be- premised its diction to issue a writ is cause, language of the EAJA “[a]s jurisdiction underlying potential clear, jurisdiction is a pre- statute makes matter and that the Court subse to, of, requisite product applica- not [the] in appropriate award fees quently EAJA tion 11 Vet.App. EAJA]”. [of potential jur that circumstances based on 404 isdiction, possess the Court must actual however, reluctantly, I I so vote over this from the that had the decision believe merits Board order to award EAJA fees for the decided, correctly would very Therefore, the Court must con appeal. likely have been to an entitled that not actual clude since it did have in а prevailing party award as a matter Secretary’s position at ad- where the underlying Board action 1997 stage substantially not ministrative does application, justified.1 I have considered whether the have to consider the EAJA properly Court could reach back and cor- itself. rect error memorаn- through judgment dum a recall of mandate, and I and have concluded that II. CONCLUSION general would not be as a matter wise Upon foregoing consideration of and in the especially ‍​‌‌‌​​‌‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​​​‌‌‌‌​‍absence analysis and the parties, requested lant’s attorney for take appellant’s application such actiоn.2 I have also concluded 2412(d)(1)(A); attorney Equal 1. See 28 U.S.C. 38 U.S.C. under the 19.26, 19.29, 7105(d)(1); Act, 2412(d) §§ 38 C.F.R. to Justice Access (1992) (relating (EAJA), 19.30 to issuance of State- timely when therefor is Case); Gober, Vet.App. ment of 433, Holland v. 10 by prevailing party). (1997) (applying statutory title Although recognized the Court has that it regulatory provisions, and note, cited in this above pоwer judgment "has the set aside applicable to issuance Statement of necessary protect integrity Case); Brown, where of its Locher v. Brown, processes”, own McNaron v. (''Secretary jus- must show substantial (1997) (citing Sargent v. for Columbia tification both his administrative and liti- Products, Inc., (2d positions” gation to avoid award оf 75 F.3d Cir. in order Forest to that it would be unwise for the litigation over the merits Heath, supra, by reconsidering extend and therefore has determining and application.3 had EAJA 1996)), judgment grave, third motion to recall contingencies”); and unforseen Hines v. denied, Co., (6th mandate Royal McNaron v. Indem. F.2d Cir.1958) (noting had failed in (holding that a motion to recall present argument pre two earlier motions to judgment and mandate that "attacks the cor- judgment sented in his third motion to recall judgment rectness of the aas matter of law mandate), many why, and there are reasons obviously petition .... rehearing un- in this it would be name”, unwise to recall denying der a different such mo- judgment discretionary and mandate. Our filed); Leroy City tion as not cf. power judgment to recall and mandate should Houston, (1990) (declin- F.2d only "sparingly” be used good and “for cause *4 judgment to withdraw and mandate in prevent injustice, only or to and when ‘unusu litigated by case where matter had been "ex- justify al circumstances еxist sufficient to perienced attorneys” "adamantly who refused ” prior judgment.’ modification or recall of a mandate”). to file a motion to recall the But Ibid.; Thompson, see also Calderon v. Empire Cohen v. Blue Cross and Blue cf. 538, 550, 1489, U.S. 118 S.Ct. 140 L.Ed.2d Shield, 116, (2d. Cir.1998) (sua 142 F.3d (1998) (reversing lower court’s recall of sponte recalling mandate in оrder to reinstate noting light mandate and that "[i]n of the improper proce- dismissed based on profound repose attaching interests in to the ruling regarding dural filing deadline for mo- mandate of a power court ... the [to recall tion for extension of time to file notice of such only mandate] can be exercised in ex appeal). (internal traordinary quota circumstances” omitted)); Kutscherousky tion In Heath v. the Court reviewed at the curiam) (per (recalling stage question the whether it had had mandate, upon Secretary, motion of the when underlying petition for necessary clarify to basis for Court’s earlier relief, extraordinary over which it had exer- decision). Moreover, questioning "the mere jurisdiction by denying cised petition. the construction, reasoning, of a court’s appli The cation of the by relevant law is insufficient Court determined that justify itself to the recall of a mandate.” lacking, had in fact been and thаt no McNaron, added) (emphasis at 63 jurisdiction could thus be had over an EAJA alia, (citing, 90). Sargent, inter 75 F.3d at application petition. based on that Id. at 404. case, by In this the benefit lost the In applied this the Court could have manner, due to the ap- dismissed opposite his Heath in the to find that we peal remanding rathеr than actually his claim is that had had over the under- procedural he has been advantage lying denied the appeal, part as demonstrated in II. of statement, "expeditious of treatment” that he would this and thus have Then, turn, by have obtained virtue of a Court remand application. of the EAJA in the his claim. Seе Improve- Veterans’ Benefits appel- Court could have determined 103-446, merits, ments Act of prevailed Pub.L. No. lant should have (and (Secretary 108 Stat. properly exercised then "shall take necessary proceeded such actions as be favorably appel- to consider the treatment, provide expeditious to for the lant’s EAJA based on the VARO’s Appeals] [Board of Veterans’ failing and ... error in [a to issue a Statement of the (VA) Department Case), regional of Veterans Affairs see text at note 1 and authorities cited (RO) ], any office rejected claim that has been in ap- note above. I hаve this Court). by” remanded this proach This is not the here because I believe that it would "injustice” sort of require that warrants the recall of engage stage the Court to addition, judgment merits, and ap- major litigation” mandate. In in a "second of the a pellant by panel did not seek highly review a of this result that I believe is undesirable and 20, 1999, Court of the erroneous strongly discouraged by has been the U.S. See, Supreme memorandum did not e.g., Court. Jacobsen v. (en order) decision to the U.S. Court (Steinberg, banc Circuit, J., therein, (and Federal and has not moved dissenting) cases cited dis- judgment to withdraw cussing recognition Supreme and mandate. All this Court’s weigh heаvily against of these are against engaging factors that Court's admonitions in sec- judgment major litigation reaching the recall of and mandate in this ond decision on Calderon, (”[t]he Moreover, supra fees). sparing instance. See for EAJA as 2, above, power use of the pointed demonstrates it is [that] one оut in note resort, against of last be sought extraordinary held in reserve such action here for Background pending reopen a claim to a claim

I. Relevant for a dis- psychiatric service connection July 1999 decision set forth The Court’s [ajppellant The submitted order. ... facts, following upon which this conсur- with the denial [NOD] February In ring opinion premised. is Therefore, the Court March 1993.... 1993, Department of Veterans Affairs ... for a should remand issue (RO) (VA) regional issued a decision office on [C]ase to be issued [Statement denying claim matter. for finally disallowed claim previously a mental disorder. service connection for аdded). (emphasis Brief at appellant filed an NOD In March Secretary’s request In to the response February to that 1993 VARO decision. as remand, October RO, reopened response, that “be reply 1998 a brief that stated but lant’s disallowed claim denied service agreement par the virtual cause of connеction, and, doing, in so stated: “Since ties, could view the claim, no fur- reopened this action has joint ... a mo constituting issue as [March ther action taken on (emphasis tion Reply for remand.” at 5 favor- is considered NOD] added). The Court’s 1999 memoran Hudson, ably 1999 WL resolved”. *5 however, decision, dum remand the did not (internal omittеd). *1 Based quotations instead, matter; Court dismissed required that the action on conclusion jurisdiction, citing Tabla appeal for lack had com- by the March 1993 NOD been (1995). Brown, 8 Vet.App. zon v. 359 pleted, “did not send the RO Hudson, 1999WL at *3. (SOC)”. In a Statement of Case Ibid. May Appeals the Board Veterans’ Analysis Legal II. as to Basis for (Board BVA) determined that new and July 1999 Memorandum Court’s presented had not been material evidence Decision previously finally disal- claim lowed for service connection for Tablazón, presented In the Court was mental disorder. appeal with based on an that had an NOD Tablazon, May 1976. been filed 20, 1999, July the Court

On issued generally at 360. The Court has single-judge memorandum decision to review final BVA decision appellant’s dismissed the only where an NOD filed on or after timely that he filed a basis had not Notice 18, 1988, (NOD) see November Veterans’ Judicial Disagreement ‍​‌‌‌​​‌‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​​​‌‌‌‌​‍connection with Act, 402, 102 Hudson, § Pub.L. No. Review Board decision. 1997 (1988) (found Court, Stat. 4122 at 38 U.S.C. supra. On to this and as note) 402]; § in the 1999 7251 [hereinafter recited memoran- VJRA Secretary dum Velez v. conceded (“Court

and the Court “that the Board has no an issue [had] held by failing NOD, ... post-November committed error to ensure absent a that the issue an SOC”. Id. at *3. expressing disagreement [RO] with an RO’s de The brief in the cision that issue or failure with an RO’s Septеmber [issue]”), and, therefore, made adjudicate following concession: correctly in Tablazón concluded that it lacked the claim at Secretary agrees the RO was Tablazon, Vet.App. issue there. at 361. [a]ppellant’s

incorrect March “favorably Although opinion the Tablazón does not 1993[NOD] was resоlved” Thus, light expressly imposed ultimate denial. state limits RO’s Secretary’s position VJRA formed for its con- that there is the basis dismissing appeal. dispute and did not memorandum requested elusion that it lacked did not afford all relief on a claim, subsequently has deter- claim raised to the RO but where an SOC (or SOC) mined that Tablazón must have beеn Supplemental yet has post-VJRA based on the lack of a NOD pursuant issued to that NOD. legal there was no other basis

upon which a dismissal of the case lack could have been based. See (Billy)

Evans

The instant case is not similar to Tabla-

zón because here the March clearly a post-VJRA ‍​‌‌‌​​‌‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​​​‌‌‌‌​‍NOD was MADDALINO, Petitioner, Patrick

NOD. It is now well established Court’s caselаw that where the Court is Togo WEST, Jr., Secretary D. ... “presented with a NOD as to Affairs, of Veterans claim ... regarding [a] which the RO has Respondent. responded by issuing never an SOC as required by regulation”, law and No. 98-2251. and will United States Court of “vacate the BVA decision and remand for Veterans Claims. to the Board ‘for appropriate [the matter] procedural compliance, specifically the is 9,May suance of an SOC’.” Fenderson v. (quoting Hol *6 Gober, (1997));

land v.

see also (Billy), supra; Evans Manlincon

Thus, because 1999 mem

orandum dismissing

was, face, on its based on the inapplicable legal precedent of Tabla upon

zon rather than the more recent Fenderson,

precedential opinions in Man

lincon, Holland, (Billy), Evans

Court’s action was not correct.

However, stated, Ias have I do not believe appropriate way

that there is an rectify

Court to that erroneous result at point.

III. Conclusion

I hope practice followed

merits in misplaced decision ‍​‌‌‌​​‌‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​​​‌‌‌‌​‍here reli Tablazón, supra,

ance will not be that, instead,

repeated and in the future will, accordance with Manlin

con, Fenderson, (Billy), Evans and Hol

land, supra, consistently all remand rather

than appealed dismiss as to an claim where 402 jurisdiction-conferring VJRA NOD

has been filed as to an RO decision