W.T. SUMNER, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.
No. 99-368.
United States Court of Appeals for Veterans Claims.
Argued Oct. 3, 2001. Decided Nov. 6, 2001.
15 Vet. App. 256
Kenneth M. Carpenter, Topeka, Kansas, for the appellant and for the National Organization of Veterans’ Advocates as amicus curiae.
Before KRAMER, Chief Judgе, and FARLEY, HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.
KRAMER, Chief Judge.
Presently before the Court is the appellant’s application for attorney fees and expenses under the Equal Access to Justice Act,
I. BACKGROUND
The appellant, through counsel, filed with this Court a timely Notice of Appeal (NOA) from a January 20, 1999, Board of Veterans’ Appeals (Board or BVA) decision that had denied his claim for service connection for spinal meningitis. Subsequent to filing his NOA with the Court, the appellant filed an unopposed motion for a stay of proceedings in his appeal; he notified the Court that he had filed with the Board a motion for reconsideration (premised upon the discovery of new and material evidence in the form of relevant records or reports of the service department concerned) of the January 1999 BVA decision and requested that the Court stay proceedings in his case until he received notification from the Board Chairman whether the Chairman was inclined to grant reconsideration. In November 1999, the Court ordered, inter alia, that if the Board Chairman was inclined to grant reconsideration of the January 1999 Board decision, the Secretary was to file with the Court a motion for remand. See Cerullo v. Derwinski, 1 Vet.App. 195, 200 (1991).
On February 4, 2000, pursuant to the Court’s order, the Secretary filed an unopposed motion to remand the January 1999 Board decision pursuant to Cerullo, supra. In that motion, the Secretary indicated that the BVA had notified the appellant thаt the BVA Chairman was inclined to grant reconsideration of the January 1999 Board decision and that the Board would take no further action with regard to reconsideration pending this Court’s transfer of jurisdiction over the appeal from the Court to the Board. The Secretary thus requested that the Court “remand ... to allow the BVA to vacate its decision and to readjudicate [the a]ppellant’s claim.” Motion at 1. Accordingly, the Court, on February 10, 2000, granted the Secretary’s unopposed motion for remand pursuant to Cerullo, supra, and ordered the immediate issuance of mandate.
Thе appellant, on March 11, 2000, filed his application for an award of attorney fees and expenses under the EAJA, seeking $6,444.66 in fees and expenses. The appellant asserted that he was a prevailing party for purposes of an award of EAJA fees, inter alia, because, by obtaining a remand of his claim, he had achieved success “on the merits.” Application (Appl.) at 2. In the alternative, the appellant asserted that he was a prevailing party under the catalyst theory. Id. The appellant further asserted that: the position of the Secretary at the administrative level was not substantially justified; there were no special circumstances that would make an award of EAJA fees unjust; and his net worth did not exceed $2,000,000. Appl. at
In an August 9, 2000, single-judge order, the Court dismissed the appellant’s EAJA application for lack of jurisdiction. In that order, the Court found that the appellant was not a prevailing party for purposes of an award of EAJA fees because, under this Court’s decisiоn in Lematta v. Brown, 8 Vet.App. 504, 507 (1996), “a Cerullo remand for reconsideration by the Board, prior to the Court’s review of the record on appeal or the filing of briefs, does not confer prevailing-party status upon an appellant pursuant to a merits theory.” Sumner v. Gober, U.S. Vet.App. No. 99-368 (ord. Aug. 9, 2000). The Court also stated that, even assuming that the appellant was a prevailing party, the position of the Secretary at both the administrative and the litigation stages was substantially justified. Id. at 3.
Subsequent to the Court’s August 9, 2000, dismissal of his EAJA application, the appellant filed a timely motiоn for panel review and for panel referral to the full Court for a decision. In that motion, the appellant argued, inter alia, that, pursuant to Shalala v. Schaefer, 509 U.S. 292 (1993), and Stillwell v. Brown, 6 Vet.App. 291 (1994), he was a prevailing party because the Court’s February 2000 remand of his appeal qualified as success on the merits. Finally, the appellant requested that the en banc Court reconsider and overrule Lematta because it was inconsistent with Schaefer and Stillwell, both supra. In a September 29, 2000, order, the Court denied the appellant’s motion for a panel decision and denied as premature the appellant’s motiоn for a full Court decision. See U.S. Vet.App. R. 35(c) (motion for full Court decision may be filed after panel has denied motion for panel decision or motion for panel reconsideration).
On October 17, 2000, the appellant filed a motion for panel reconsideration or, in the alternative, for a full Court decision. The appellant in essence reiterated the arguments that he had made previously regarding Lematta and further stated that Lematta was in conflict with this Court’s decision in Swiney v. Gober, 14 Vet.App. 65, 69 (2000) (stating that “all of the appealed claims were remanded, resolutions which materially сhanged the ‘legal relationship’ between the Secretary and the appellant, Texas State Teachers Ass’n [v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)], from one of claim denial to a continuing adjudicatory process”). The Court, in an April 3, 2001, order, denied the appellant’s motion for panel reconsideration. Sumner v. Principi, 14 Vet.App. 309, 310 (2001) (en banc order). In its order, the Court stated that the resolution of Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598 (2001), may affect the disposition of the appellant’s EAJA application. The Court ordered, therefore, that the appellant’s motion for a full Court decision be held in abeyance рending further order of the Court. Sumner, supra. The Court further ordered that the appellant, within 30 days after the U.S. Supreme Court’s disposition of Buckhannon, supra, file and serve a legal memorandum addressing the resolution of that proceeding as it pertains to his EAJA application. Sumner, supra. Finally, the Court ordered that the Secretary file and serve a legal memorandum within 30 days after service of the appellant’s legal memorandum. Id. The U.S. Supreme Court, on May 29, 2001, issued its opinion in Buckhannon, 532 U.S. 598 (2001).
The National Organization of Veterans’ Advocates (NOVA), on June 27, 2001, filed an unopposed motion for leave to file an amicus curiae brief. On that same date, the Court received NOVA’s brief. NOVA asserts that, to attain prevailing-party status, Buckhannon requires that the appellant receive “at least some relief on the merits” from the Court. Brief (Br.) at 5. NOVA argues that the appellant received “relief on the merits of his claim” because the Court “vacated” the January 20, 1999, BVA decision and remanded the matter to the Board for readjudication. Br. at 6. (The Court notes that, contrary to NOVA’s argument, the Court did not vacаte the BVA decision, but that circumstance is not relevant under our analysis of prevailing-party status. See discussion, infra.) NOVA further argues that such a remand effects a “material alteration of the legal relationship of the parties” because, as stated in Swiney, the appellant’s case has gone from “[claim] denial to a continuing adjudicatory process.” Br. at 6-7. Finally, NOVA argues that Lematta is inconsistent with Buckhannon because Lematta requires the appellant to “win the litigation.” Br. at 8. NOVA contends, therefore, that the full Court should overrule Lematta and reverse the August 9, 2000, single-judge order thаt dismissed the appellant’s EAJA application. Id.
On June 28, 2001, the appellant, pursuant to the Court’s April 2001 order, filed his legal memorandum. The appellant contends that Buckhannon and Swiney together establish that the Court’s Cerullo remand in the instant case is an enforceable judgment on the merits because, in remanding the matter and requiring readjudication, the Court’s order altered the legal relationship between the appellant and the Secretary in that it allowed the appellant to avoid an adverse Court decision and to reassert his claim before the BVA. Appellant’s Memorandum (Mem.) at 9-10. The appellant asserts: “It is assumed that the Court reviewed the underlying pleadings and the record and determined there was no legal impediment preventing the Court from granting the Secretary’s [unopposed] motion [for] remand.” Appellant’s Mem. at 11. The appellant contends, therefore, that the Court’s remand order addressed the merits of his case and that he thus is a prevailing party for purposes of an award of attorney fees and expenses under the EAJA. Id.
The appellant next asserts that all that Buckhannon requires to attаin prevailing-party status under the success-on-the-merits theory is an enforceable judgment on the merits and that a Cerullo remand meets this requirement. Appellant’s Mem. at 12. The appellant contends in essence that Lematta predicated success on the merits upon the filing of pleadings or other documents after the appellant has filed his
On July 27, 2001, pursuant to the Court’s April 2001 order, the Secretary filed his legal memorandum. The Secretary initially asserts that Buckhannon eliminates the catalyst theory as a viable basis for attaining prevailing-party status. Secretary’s Mеm. at 4-5. The Secretary then asserts that the Supreme Court’s application of the merits theory set forth in Buckhannon is not inconsistent with this Court’s application of the merits theory in Lematta, and that Buckhannon thus does not overrule Lematta. Secretary’s Mem. at 5. The Secretary argues that the appellant’s contention that under Buckhannon an appellant is a prevailing party for purposes of the EAJA by merely obtaining a Court remand judgment in the underlying case, thus altering the legal relationship of the parties, ignores the key element in Buckhannon that there must be a judicial judgment on the merits. Secretary’s Mеm. at 6. The Secretary contends that the Cerullo remand that was granted by this Court in the underlying case was purely procedural and did not afford the appellant even “some relief on the merits of his claim.” Secretary’s Mem. at 6-7. The Secretary asserts that this Court did not make “some [‘]substantive determination in [the] appeal, based upon the record, the parties’ pleadings, and the Court’s[’] precedent, that is favorable to the appellant.’” Id. (quoting Swiney, 14 Vet.App. at 69). The Secretary thus contends that the appellant did not achievе success “as a result of the Court’s consideration of the merits of his arguments” and, therefore, is not a prevailing party under the merits theory for purposes of the EAJA. Id. at 7.
Oral argument before the en banc Court was held in the instant case on October 3, 2001. By holding that oral argument, the Court in essence granted the appellant’s motion for a full Court decision and also granted NOVA’s motion to appear as amicus curiae. NOVA’s brief will be filed as of the date that it was received.
II. ANALYSIS
This Court may award reasonable attorney fеes and expenses pursuant to
To the extent that the appellant still may be asserting prevailing-party status based upon the argument that his appeal of the January 1999 Board decision to this Court served as the catalyst for the BVA Chairman’s decision to grant reconsideration of his claim, as a result of Buckhannon that issue has been eliminated from the instant case. See Thayer v. Principi, 15 Vet. App. 204, 208-209 (2001) (concluding that Buckhannon prevailing-party definition should be applied to EAJA and that catalyst theory is not available to achieve prevailing-party status in this Court). Although the holding of Buckhannon involved only the elimination of the catalyst theory as a basis for achieving prevailing-party status, the language that the Supreme Court used in restating its precedents with respect to the definition of prevailing party prompts this Court now to reexamine our jurisprudence with regard to attaining prevailing-party status pursuant to the success-on-the-merits theory under the EAJA and to clarify our caselaw.
In Buckhannon, the Supreme Court initially noted the definition of “prevailing party” in fee-shifting statutes as being one “‘in whose favor a judgment is rendered, regardless of the amount of damages awarded.’” Buckhannon, 121 S.Ct. at 1839 (quoting BLACK’S LAW DICTIONARY 1145 (7th ed.1999)). The Supreme Court then stated that the view that a prevailing party is “one who has been awarded some relief by the court can be distilled from our prior cases.” Id. In discussing such prior cases, the Supreme Court reiterated that, in order to attain prevailing-party status, a party is required to “receive at least some relief on the merits of his claim.” Id. at 1840 (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987) (holding that plaintiff was not prevailing party simply by virtue of court of appeals favorable statement of law because such statement, which amounted at most to interlocutory ruling that complaint should not have been dismissed for failure to state constitutional claim but which afforded plaintiff no relief on merits of that claim, was “not the stuff of which legal victories are made”)). The Supreme Cоurt found that, when taken together, its prior decisions established that “enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 1840 (quoting Texas State Teachers Ass’n, 489 U.S. at 792 (holding that unions were prevailing parties because they obtained judgment finding that school-district policy prohibiting teachers from communicating with each other regarding union activities violated teachers’ First Amendmеnt rights)); see also Farrar v. Hobby, 506 U.S. 103, 109-12 (1992) (Supreme Court held that plaintiff who had been awarded even nominal damages obtained enforceable judgment that reflected relief on merits of claim and thus made him prevailing party for fee purposes); Maher v. Gagne, 448 U.S. 122, 125 (1980) (Supreme Court affirmed lower court judgment that Aid to Families with
The Court’s seminal decision on prevailing-party status is Stillwell, supra. In the appeal underlying Stillwell, this Court granted the parties’ joint motion for remand pursuant to Gregory v. Brown, 5 Vet.App. 108 (1993) (remand ordered for Board to correct error made in applying regulation, subsequently found to be unlawful, regarding surviving-spouse status; Court also ordered BVA to make specific factual findings in course of readjudication). In rendering a decision on the appellant’s EAJA application in Stillwell, the Court, relying upon Schaefer, supra, held that the appellant was a prevailing party because she had obtained just such a remand, i.e., a remand predicated upon the BVA’s application of an invalid regulation, even though the Court had not yet declared (in Gregory, supra) that invalidity at the time that the Board had rendered its decision on her claim. Stillwell, 6 Vet. App. at 300-01. The Court further held, however, that the Secretary was substantially justified because his misinterpretation of the regulation at issue was “no more than a reasonable mistake” and thus denied the appellant’s EAJA application. Id. at 301-03. In the course of reaching its decision in Stillwell, the Court stated that Schaefer directed that “a remand alone” conferred prevailing-party status upon an appellant because a remand reprеsented “‘succe[ss] on any significant issue in litigation which achieve[d] some of the benefit ... sought in bringing suit.’” Stillwell, 6 Vet.App. at 299-300 (quoting Schaefer, 509 U.S. at 302).
In the underlying case in Schaefer, the plaintiff had been denied Social Security disability benefits at the administrative level and subsequently had sought judicial review of that denial. See Schaefer, 509 U.S. at 294. In the course of that judicial review, a district court, holding that, in adjudicating the plaintiff’s claim at the administrative level, the Secretary of Health and Human Services (HHS) had committed three errors that the Secretary had to correct, reversed the negative administrative decision and remanded the plaintiff’s claim for disability benefits for correction of those errors. Id. Thereafter, when rendering a decision on the plaintiff’s EAJA application in Schaefer, the Supreme Court held that the plaintiff was a prevailing party for EAJA purposes based upon this underlying result.
The Court notes in particular that the remands in both Schaefer and Stillwell were predicated upon administrative error. Although the Court recognizes the breadth of the language in Stillwell, supra, which, in and of itself, could be read to mean that prevailing-party status is achieved any time that this Court remands an appellant’s underlying appeal, that language must be read in the context of why the remands were orderеd in both Schaefer and Stillwell.
In Lematta, which the appellant and NOVA urge this Court to find inconsistent with Buckhannon and thus overrule, the Court addressed for the first time whether a remand pursuant to Cerullo automatically makes an appellant a prevailing party under the EAJA. The Court initially stated that “this Court has generally held that the prevailing[-]party requirement of the EAJA is satisfied when a remand is ordered.” Lematta, 8 Vet.App. at 507 (citing Stillwell, supra). In the context of applying the success-on-the-merits theory for attaining prevailing-party status, the Court posited that, at its most fundamental level, that theory would allow an appellant to qualify as a prevailing party if the appellant “‘w[on] the litigation.’” Id. at 508 (quoting Exeter-West Greenwich Reg’l Sch. Dist. v. Pontarelli, 788 F.2d 47, 50 (1st Cir.1986)). The Court stated, however, that, pursuant to Stillwell, an “outright victory” is not always necessary and that it is sufficient for the Court to make some “substantive determination in [the] appeal, based upon the record, the parties’ pleadings, and the Court’s’ precedent, that is favorable to the appellant.” Id. (quoting Stillwell, 6 Vet.App. at 301). The Court found the rule quoted in Stillwell to be consistent with the Supreme Court’s holding in Schaefer that a party to a lawsuit attains prevailing-party status “‘[i]f the plaintiff has succeeded on any significant issue in litigation which achieved some of the benefit ... sought in bringing the suit.’” Id. (quoting Schaefer, 509 U.S. at 302). Applying these guidelines, the Court in Lematta held that, because its Cerullo remand order was issued bеfore it had considered the merits of the appellant’s case, it had not made any substantive determinations with regard to the appellant’s appeal and that thus the appellant had failed to demonstrate that he was a prevailing party under the merits theory for purposes of the EAJA. Id. at 509.
Lematta also must be construed in the context in which it occurred. In the appeal underlying Lematta, the Court, unlike the district court in Schaefer and this Court in Stillwell, did not order a remand predicated upon error in the administrative adjudication process. Rather, in that underlying appeal in Lematta, thе Court had based its remand of the appellant’s claim solely upon the Secretary’s remand motion, which requested that the Court return jurisdiction to the Board but which did not acknowledge any administrative error. Lematta’s reference to the filing of a record on appeal or any pleadings by the parties was simply a case-specific reference to demonstrate that the Court had made no remand based upon administrative error. Thus, given this context, the Lematta holding is not inconsistent with either the Schaefer or Stillwell holdings.
The appellant similarly argues that Lematta is inconsistent with Swiney, supra. In the underlying appeal in Swiney, the Court reversed a Board decision as to one claim; vacated a Board decision as two other claims on the grounds that the Board “had failed to apply and had incorrectly applied, respectively, pertinent regulations”; and remanded the three matters
The Court notes that in Buckhannon, supra, where prevailing-party status was not found, there was no underlying court determination of any error. Further, an analysis of the cases cited in Buckhannon is instructive. Applying the standard summarized in Buckhannon (“some relief on the merits”),
This analysis reveals that those Supreme Court cases awarding prevailing-party status either require the ultimate receipt of a benefit that was sought in bringing the litigation, i.e., the award of a benefit, or, at a minimum, a court remand predicated upon administrative error. See Buckhannon and Schaefer, both supra. Both of these alternatives entail resolutions that materially alter the legal relationship of the parties. See Texas State Teachers Ass’n and Swiney, both supra. Thus, a remand does not constitute “some relief on the merits” unless that remand is predicated upon administrative error. Buckhannon, 121 S.Ct. at 1840. Stillwell, Lematta, and Swiney, all supra, comport with this construct. To the extent that any Court precedent could be construed as in conflict with our holding today, we disavow that precedent.
III. CONCLUSION
Upon consideration of the foregoing analysis, the August 9, 2000, single-judge order is revoked; this opinion is issued in its stead; and the appellant’s EAJA application is denied. It is so ordered.