Case Information
*1 Before FARLEY, HOLDAWAY, and IVERS, Judges
IVERS, Judge
: Following two separate decisions by this Court concerning the merits of her
appeal, the appellant, through counsel, filed an application (supplemented) for payment of her legal
fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The
appellant's EAJA application satisfies all jurisdictional and content requirements.
See
28 U.S.C.
§ 2412(d)(1)(B);
Sumner v. Principi
,
In the first decision on the merits, found at
Sachs v. Gober
,
In order to be eligible for an award of EAJA fees and expenses, the appellant must, inter alia,
show that she is a prevailing party, within the meaning of EAJA, as a result of the Court's disposition
of her appeal.
See Sumner
,
The Court's dispositions in Sachs I and Sachs II did not result in an award to the appellant of the benefits that she sought in bringing the litigation. Therefore, to determine whether the appellant was an EAJA prevailing party, the Court must determine whether the remands were predicated upon administrative error by the Board.
I. Sachs I
The rule of retroactive application was applied in Sachs I, when the Court remanded a matter based solely on the intervening change in case law brought about by Schroeder . See Brewer v. West , 11 Vet.App. 228 (1998) (rule of law announced and applied in a case shall apply retroactively to all matters pending before the Court). In order to determine whether the appellant is a prevailing party for purposes of EAJA, following the case-law-change remand in I, the Court must decide what effect, if any, the rule of retroactive application has on the determination of whether the remand was predicated upon administrative error. See Sumner , supra
The Court's decision in Brewer , and the supporting Supreme Court decisions cited therein, required further adjudicatory action due to changed case law, but did not conclude that prior adjudications had been erroneous. In fact, the Brewer decision affirmed the Board decision that was before the Court on appeal, based on a change in case law that disfavored the appellant in that case.
Under the rule of retroactive application, in I the Court remanded for the Board to apply a new rule of law to a decision on the merits of a claim where the Board had made a decision before that law came about. It would not be reasonable to conclude that the remand in I was predicated upon administrative error when, as noted by the Court, the Board properly applied the law in effect at the time of its 1998 decision. I at 179-80; cf. Bowyer v. Brown , 7 Vet.App. *3 549 (1995) (when remand by Court was based on change in case law that post-dated BVA decision, Secretary's position at administrative and litigation stages was reasonable given state of law at time of BVA decision).
The Court has clearly stated that a party is not an EAJA prevailing party unless the party
is awarded the benefits sought in bringing the litigation, or the disposition of the party's appeal
results in a remand predicated upon administrative error. ,
II. II
Similarly, the remand affected by II, based solely on the enactment of the VCAA, was
not predicated upon administrative error.
Vaughn supra .
For purposes of EAJA fees and
expenses, the appellant is not a prevailing party as a result of the Court's decision in II .
See
Sumner
and
Vaughn
, both . Moreover, the Court has ruled that the catalyst and inevitable-
victory tests are not viable means to attain EAJA prevailing party status.
See Vaughn
;
Thayer
v. Principi
,
III. CONCLUSION
Accordingly, upon consideration of the foregoing, the appellant's initial and supplemental EAJA applications are DENIED.