Lead Opinion
STEINBERG, Judge, filed the opinion of the Court. IVERS, Judge, filed a dissenting opinion.
The appellant, veteran Mack A. McCormick, previously appealed through counsel a December 16,1997, decision of the Board of Veterans’ Appeals (Board or BVA) that had denied as not well grounded his claim for Department of Veterans Affairs (VA) service connection for loss of vision. See McCormick v. Gober,
I. Relevant Background
The relevant background of this case on the merits is set out in full in our prior opinion, McCormick,
Finally, the Court notes that the Board, in its adjudication of the instant claim, erred in its continuity-of-sympto-matology analysis. In order to avoid repetition of that error on remand, the Court notes the following.
... In considering whether the veteran had submitted a well-grounded claim pursuant to [38 C.F.R.] § 3.303(b), the Board stated the following:
[L]ay evidence submitted by the veteran ... is probative also to the extent that it suggests a continuity of symptomatology from the veteran’s military service. 38 C.F.R. § 3.303(b). However, ... [i]t is not sufficient to show that the veteran reported problems with his vision or even that he wore corrective lenses. In this case, competent medical evidence is needed to identify the reason for the symptoms described .... The veteran must submit competent medical evidence associating his current eye symptomatology with injury or disease during his active service.
[Record] at 5 (emphasis added). However, Savage [v. Gober,10 Vet.App. 488 (1997),] and § 3.303(b) require only that a claimant submit competent evidence of a nexus between his present disability and his postservice symptomatology, 38 C.F.R. § 3.303(b); Savage, supra. To the extent that the Board required otherwise, i.e., “competent medical evidence associating his current eye symptomatol-ogy with injury or disease during his active service,” the Board misapplied the continuity-of-symptomatology criteria from Savage, supra.
Id. at 49-50 (first-sentence emphasis added). The Court concluded:
Upon consideration of the foregoing analysis, the [record on appeal], and the submissions of the parties, the Court vacates the December 16, 1997, BVA decision and remands the matter for expeditious further proceedings and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5107, 7104(a), (d)(1); 38 C.F.R. § 3.303(b); VBA Letter; Fletcher v. Derwinski,1 Vet.App. 394 , 397 (1991), all consistent with this opinion ....
Id. at 50 (emphasis added).
The appellant then filed his EAJA application on December 4, 2001, seeking $19,816.02 in attorney fees and $333.76 in expenses. Application (Appl.) at 9. He argues in the application that he was a prevailing party because he received a remand and that the position of the Secretary was not substantially justified at the administrative stage because (1) the Board failed to address the M21-1 provisions and (2) the Board erred in its continuity-of-symptomatology analysis. Appl. at 3-6. In his March 20, 2001, response, the Secretary concedes prevailing-party status (Response (Resp.) at 7) but argues that his position was substantially justified (Resp. at 8-13). The Secretary also argues (for reasons that will be enumerated below) that, if the Court grants the appellant’s application, the attorney time for which the appellant seeks compensation should be reduced by 38.1 hours. Resp. at 14-16.
The appellant then filed a July 18, 2001, motion to file a supplemental application, with a supplemental application included seeking an additional $2,801.08 in fees and expenses for the EAJA litigation itself. On August 20, 2001, the Secretary filed a motion for clarification and/or to stay response to the appellant’s supplemental application. On September 6, 2001, the appellant filed an opposition to the Secretary’s motion for a stay, along with a further motion to supplement the initial application with another supplemental application seeking (1) additional fees and expenses in connection with the preparation of that opposition to the Secretary’s stay motion and (2) apparently, certain fees and expenses not included in the July 2001 supplemental application. The appellant’s supplemental applications seek a total $3,506.23 in additional fees and expenses.
On February 11, 2002, the Secretary filed a notice of supplemental authority (noting the issuance of Sachs v. Principi,
II. Analysis
A. Jurisdiction
The appellant’s December 4, 2000, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B). In order to satisfy any applicable EAJA jurisdictional content requirements, an application must contain the following: (1) A showing that, by virtue of the Court’s remand, the applicant is a prevailing party within the meaning of the EAJA; (2) a showing that the applicant is a party eligible for an award under the EAJA because his or her net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Cullens v. Gober,
B. Prevailing-Party Status
In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a
The appellant argues that he is a prevailing party based on the second Sumner criterion because of the Court’s finding regarding the Board’s Savage error. The Secretary maintains that this was not a basis for remand and that, even if it was, it is not the type of error that should be sufficient to qualify one as a prevailing party. The second Sumner criterion, “a court remand predicated upon administrative error” (here by the Court “recog-niz[ing] administrative error”), Sumner, 15 VetApp. at 264, has three elements: (1) A court remand; (2) a court recognition of administrative error; and (3) the remand’s being predicated on that error.
As to the first element, there is no question that there was a Court remand in this case. As to the second element, neither party contests that the Court found error here. We stress that Sumner requires only a court “recognition of] administrative error”. Sumner,
The third element of the second Sumner criterion relates to the connection
Accordingly, because there is a Court determination of § 3.303(b)/Savage error here and because the Court’s remand language also clearly indicated that the remand was based on that § 3.303(b) error, we hold that the appellant has attained prevailing-party status due to a “remand predicated upon administrative error”. Sumner,
C. Substantial Justiñcation
Under the EAJA, the Secretary has affirmative defenses to a fee award, one of which is to demonstrate that his position at both the administrative (BVA) and litigation (Court) stages was “substantially justified”. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a prevailing party ... fees and other expenses ... unless the court finds that the position of the United States was substantially justified ” (emphasis added)), (d)(1)(B); Cullens,
This Court has established the following standard to determine whether the position of the Secretary was substantially justified:
[T]he VA must demonstrate the reasonableness, in law and fact, of the position*413 of ... VA in a matter before the Court, and of the action or failure to act by ... YA in a matter before ... VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court.
Stillwell, supra; see also Cullens,
D. Reasonableness of Fees
“The Court has wide discretion in the award of attorney fees under the EAJA.” Chesser v. West,
The Secretary argues here for a reduction in fees of 38.1 hours, because he asserts that (1) the appellant’s counsel spent too much time (33.2 hours) on a brief that consisted of six pages of argument and that contained only two arguments, one that the Court did not address substantively (the M21-1 argument), and the other
Although arguments such as these might in certain cases be viewed as nothing more than unsupported assertions that should not serve as a basis to reduce the fees requested, that is not always the case. Under Chesser, the Court may, sua sponte, reduce fees that appear unreasonable on their face. In this case, the fees claimed by the appellant do appear to be unreasonable, both as to the brief and as to the oral argument. In this respect, the Secretary’s arguments on these points are largely persuasive, and the appellant has offered little in rebuttal. Therefore, based on the Secretary’s arguments and in light of the fact that the basis of the remand here was one recognized by the Court sua sponte and was not argued at all by the appellant, the Court will reduce the allowable hours here. However, the Secretary’s request to reduce the amount by 38.1 hours fails to take into account the following two factors: (1) The appellant’s counsel did, in the appellant’s application, “in a good faith effort to avoid any question as to time spent for arguably administrative matters”, reduce by five hours the total hours for which he sought compensation (Appl. at 8); and (2) the appellant offered a rationale as to at least some of the hours spent in preparation for oral argument, i.e., the need for his counsel to review two new cases that had been issued after the filing of his brief (Reply at 15). Accordingly, in the exercise of its discretion, the Court will reduce by 30 hours the hours requested in the application, from 149.60 to 119.60 hours.
E. Supplemental Application and Stay Motion
The appellant has filed two motions to supplement his EAJA application to include attorney fees for the EAJA litigation. The Secretary has filed an opposed motion for clarification or stay as to these matters. The Secretary argues that “[a]ny assessment of the reasonableness of [the] supplemental application is contingent on the Court’s ruling”; he further notes that “[n]o rule, express or otherwise, governs this matter in either directing the time for filing of the supplemental application or the Secretary’s deadline to respond to the application.” August 2001 Motion at 2. On November 1, 2001, after the filing of both motions to supplement and the Secretary’s motion, the Court adopted amendments to Rule 39 of its Rules of Practice and Procedure (Rules), to add the following:
(b) Supplemental application. An appellant or petitioner whose application described in subsection (a) of this rule has been granted in whole or in part may, not later than 30 days after the Court action granting such application, file a supplemental application for attorney fees and other expenses in connec*415 tion with the submission or defense of such subsection (a) application. See Rule 25.
(c) Response. Within 30 days after the date on which an application described in subsection (a) or a supplemental application described in subsection (b) is filed, the Secretary shall file and serve a response to the application or supplemental application, stating which elements of the application or supplemental application are not contested and explaining the Secretary’s position on those elements that are contested.
In re: Rules 39, 41, and 12 of the Rules of Practice and Procedure, 15 Vet.App. CCCLX, CCCLXI (2001). In the comment to this Rule change, it is noted: “Subsection (b) is added to provide specifically for the submission, once an initial EAJA application is granted, of a supplemental EAJA application”. Ibid, (emphasis added). Given the above-quoted amendment to Rule 39 and the comment thereto, the appellant’s supplemental applications (which deal exclusively with the defense of the original application) would be considered premature, because they were submitted prior to a ruling on the initial application, if they had been filed after the adoption of the Rule 39 amendment. However, because the motions to supplement were filed before that amendment to Rule 39 was adopted and the Court is here granting in substantial part the appellant’s initial EAJA application, the Court will grant the appellant’s motions to supplement his initial EAJA application and will file as of the date of this opinion the supplemental applications that were submitted with the motions. Cf. Stillwell,
III. Conclusion
Upon consideration of the foregoing analysis and the pleadings of the parties, the Court grants the appellant’s EAJA application in the reduced amount of $16,175.98. Pursuant to Rule 39(b), the Court grants the appellant’s motions to file supplemental applications; the Clerk of the Court will file the appellant’s supplemental applications as of the date of this opinion. Under Rule 39(c), the Secretary will have 30 days to file a response, and under Rule 39(d) the appellant will have 30 days to file a reply to the Secretary’s response. See U.S. VetApp. R. 39(b), (c), (d). The Court denies as moot the Secretary’s motion for a stay and clarification. In view of the foregoing disposition, there is no need for the Court to act on either the Secretary’s February 11, 2002, motion, or the appellant’s February 15, 2002, opposition motion.
APPLICATION GRANTED IN PART.
Dissenting Opinion
dissenting:
The majority manipulates the clear language and intent of the underlying decision on the merits in this case to conclude that the appellant was a prevailing party for purposes of EAJA. The majority elevates what the Court called a “Miscellane
The majority has determined that the appellant was an EAJA prevailing party by declaring that the underlying remand was predicated upon administrative error, recognized by the Court in its statement that the Board erred in applying the continuity-of-symptomatology criteria. McCormick v. Principi,
In the decision on the merits in the underlying appeal in this case, the Court stated the following: “In this case, the Board denied the [appellant’s] claim as not well grounded.... The appellant does not, in essence, challenge the Board’s negative determination on well groundedness, and, in view of the Court’s holding in part U.B., below, we need not review that determination.” McCormick,
At the end of the decision on the merits, as a preventive measure and cautionary note entitled “Miscellaneous Matter,” the Court “noted” (the tail) that the Board, in its decision, had misapplied criteria for determining continuity of symptomatology in finding that the appellant’s claim was not well grounded. Id. at 49-50. The Court had stated that it was remanding for further development, and then advised the Board not to misapply, as it had before, the criteria for determining continuity of symptomatology during readjudication of the claim. The latter instruction was advisory in nature because the Court had clearly stated that it need not review the unchallenged determination on well groundedness.
The majority in this EAJA matter now elevates what was non-precedential and advisory to a basis for remand on the merits. The fact that the Court, in the decision on the merits, stated that the Board’s determination on well groundedness was not under review is certainly sufficient support for a conclusion that the Court’s sua sponte comments regarding a shortcoming in the Board’s process of making that determination were not a basis for the remand. In other words, contrary to the far-reaching conclusion arrived at by the majority, the remand effected by the decision on the merits was not predicated upon the administrative error recognized by the Court in its advisory note.
The majority’s manipulation of the decision on the merits in this case is analogous to a post hoc rationalization, which is firmly prohibited in litigation. See Martin v. Occupational Safety & Health Review Comm’n,