Appellant Shannon D. Smith, a Navy veteran, appeals from a decision of the Court of Appeals for Veterans Claims (“the Veterans Court”), denying his application for an award of attorney fees and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The Veterans Court found that Mr. Smith was a prevailing party in that cоurt by virtue of obtaining a remand to the Board of Veterans’ Appeals (“BVA”), but the court ruled against him on his claim for fees because it determined that the posi
I
In December 1994, Mr. Smith submitted a claim of service connection for a psychiatric disorder. A regional office of the Department of Veterans Affairs (“DVA”) denied his claim. He did not appeal that denial to the BVA. In 1997, Mr. Smith filed what the agency treated as a request to reopen his claim. The regional office granted him service connection for a schi-zoaffective disorder, effective as of the date of his filing, July 15,1997.
Mr. Smith appealed that decision to the BVA, seeking an earlier effective date. He contended that he had filed a claim for benefits in 1991 and that his 1994 claim should be regarded as still pending because he never received effective notice of its denial. Finding no record of any claim on Mr. Smith’s behalf in 1991, the BVA rejected Mr. Smith’s argument that he filed a claim in that year. The BVA also rejected his contention that he was not validly notified of the denial of his 1994 claim in light of the evidence that notice of the denial was sent to his address of record and in light of the absence of medical evidence that he was incompetent at that time. Accordingly, the BVA held that the regional office was correct to make his disability rating effective as of the date of his July 1997 request to reopen his claim.
In the final paragraph of its opinion, the BVA noted that in November 2000, three months before the BVA’s decision, Congress enacted the Veterans Claims Adjustment Act of 2000 (“VCAA”), Pub.L. No. 106-475, 114 Stat.2096, which modified the procedures applicable to veterans’ claims in several respects. The BVA acknowledged that the regional office had not had an opportunity to review Mr. Smith’s claims in light of the new legislation. The BVA concluded, however, that because all the pertinent records were on file and because Mr. Smith had been fully apprised of the legal requirements for establishing entitlement to an earlier effective dаte for his claim, he was not prejudiced by the fact that the regional office had not considered the effect of the VCAA at the time it acted on his claim. Mr. Smith appealed the BVA’s decision to the Veterans Court.
Three months after the BVA’s ruling in Mr. Smith’s case, the Veterans Court issued its decision in
Holliday v. Principi
On July 2, 2001, Mr. Smith filed an application under EAJA seeking an award of fees and expenses totaling $1,764.95 for his attorney’s work in the Veterаns Court. He contended that the Secretary’s position at the administrative level was not substantially justified because (1) the BVA should have remanded the case to the regional office in light of the new statute’s provisions “concerning the assistance to be afforded claimants of veterans benefits and the decision оf their claims,” and (2) because the BVA’s discussion of the VCAA was “not thorough enough to indicate with certainty that the provisions of the VCAA have’ been met, specifically with respect to notice and the Secretary’s duty to assist ... and did not provide an adequate statement of reasons or bases as to whether all of the рrovisions of the VCAA have been met considering the facts of this case.” The Secretary opposed Mr. Smith’s motion on the grounds that (1) Mr. Smith was not a prevailing party and (2) the BVA’s position was substantially justified because its actions with respect to the VCAA were reasonable in light of the uncertain state of the law at the time.
The Vеterans Court denied Mr. Smith’s EAJA application. The court held that Mr. Smith was a prevailing party because the Secretary had confessed error in the joint motion for a remand. However, the court concluded that the BVA’s position was substantially justified and that, Mr. Smith was therefore ineligible for a fee award. The court explаined that “in demonstrating that its position was substantially justified, VA must establish the reasonableness of its position, which is based upon the totality of the circumstances.” If the agency’s actions were reasonable, the court explained, “then the actions were substantially justified.” In determining whether the Secretary had carried his burden of proof of demonstrating that his position at the administrative stage was reasonable, the court stated that it would look to the “relevant, determinative circumstances.” •
Evaluating the reasonableness of the BVA’s decision in light of the state of the law at the time, the Veterans Court explained that at the time of the BVA’s аction the court had not yét addressed the full scope and effect of the VCAA and that even an opinion issued by the DVA General Counsel’s office shortly after the enactment of the VCAA did not fully resolve the question of the scope of the Act. The court noted that, although the Secretary agreed to the joint remand in light of Holliday, the BVA, which had acted prior to the decision in Holliday, could not have predicted that the Veterans Court would apply the VCAA in the manner it did. 1 Accordingly, the Veterans Court concluded that the BVA’s position with respect to the VCAA was substantially justified. One judge dissented in part from the court’s decision, stating that he believed that the Secretary’s position was not substantially justified because the BVA had failed to provide an adequate statement of reasons or bases for its decision.
Mr. Smith filed a motion for reconsideration or, in the alternative, full court review, arguing that on the issue of substantial justification the Veterans Court had improperly considered only the “relevant, determinative circumstances” rather than the “totality of the circumstances.” Mr.
II
Before disсussing the merits of Mr. Smith’s appeal, we must address the Secretary’s argument that we lack jurisdiction over this appeal. The Secretary contends that the question whether the agency’s position was substantially justified is a “quintessentially discretionary ruling [that] necessarily involves questions of fact and application of law to fact.”
Carpenter v. Gober,
Ill
On the merits of the substantial justification issue, Mr. Smith contends that the test applied by the Veterans Court to determine whether the agency’s position was substantially justified differs significantly from the test dictated by this court. In particular, Mr. Smith argues that the Veterans Court has held that the court’s task is to determine whether the agency’s position was substantially justified based on the “relevant, determinative circumstances,” while this court has required that determination to be made оn the basis of the “totality of the circumstances.”
See, e.g., Essex Electro Eng’rs, Inc. v. United States,
We reject Mr. Smith’s challenge to the standard applied by the Veterans Court in determining whether the Secretary’s position was substantially justified. Citing this court’s decision in
Essex Electro Engineers, Inc. v. United States,
which first set forth the totality of the circumstances test,
see
In addition to reciting the “totality of the circumstances” test, the Veterans Court has on several occasions — including in this case — referred to the “relevant, determinative circumstances” test. In particular, the court has explained that in assessing the reasonableness of the agency’s litigation position the сourt looks to “the circumstances surrounding the resolution of the dispute,” and in determining the reasonableness of the Secretary’s position during the administrative proceedings the court looks to “the relevant, determinative circumstances.”
Carpenito v. Brown,
Although there has been some disagreement among the judges of the Veterans Court as to whether the court should stop reciting the “relevant, determinative circumstances” test in favor of referring exclusively to the “totality of the circumstances,”
compare Cullens v. Gober,
Nothing about this case indicates that the invocation of the “relevant, determinative circumstances” test affected the Veterans Court’s inquiry into substantial justification. The court properly confined its substantial justification inquiry to the issues as to which the court held that Mr. Smith was a prevailing party, i.e., the issues on which the court granted the joint motion for a remand. Moreover, contrary to Mr. Smith’s contention, the court’s legal standard did not lead it to ignore factors suсh as the contemporaneous views of the DVA General Counsel. In particular, the court discussed the position taken by the General Counsel in an opinion issued shortly after the enactment of the VCAA and found that it did not resolve the ambiguity concerning the scope of the Act. Although the court did not expressly address the other General Counsel opinion or the Secretary’s Fast Letters issued after the enactment of the VCAA, nothing in the court’s opinion suggests that it regarded those factors as irrelevant under the “relevant, determinative circumstances” test. In concluding that the Secretary’s position was substantially justified at the administrative stagе, the court concluded that, in light of the state of the law at the time the Board acted, it was reasonable for the Board to rule as it did. That conclusion does not appear in any way to have turned on the application of the “relevant, determinative circumstances” test as opposed to the “totality of the circumstances” test. We regard the “relevant, determinative circumstances” test, as applied by the Veterans Court, to require examination of the reasonableness of the agency’s action at the administrative stage with respect to the issue on which the claimant prevailed, and not to depart from the “totality of the circumstances” test that this court has adopted. We therefore reject Mr. Smith’s argument that the Veterans Court employed an improper legal standard in reaching its conclusion that the agency’s position was substantially justified.
Because our jurisdiction extends only to that legal questiоn and not to the question whether the Veterans Court was correct in determining that the BVA’s position was substantially justified, we uphold the court’s decision with respect to the former issue, and we do not address the latter question. We also need not address the government’s alternative argument in support of affirmance, that the remand order did not grant Mr. Smith the kind of relief necessary to make him a “prevailing party” within the meaning of EAJA.
AFFIRMED.
Notes
. The Veterans Court's decision in
Holliday
has since been overruled by this court.
Kuzma v. Principi,
No. 03-7032,