Thompson v. Dept. Of Veterans AffairsThompson v. Dept. Of Veterans Affairs
ELIZABETH M. HOSFORD, Senior Trial Counsel, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant Director. Of counsel on the brief were MICHAEL J.
Before NEWMAN, BRYSON, Circuit Judges, and FOGEL, District Judge.*
FOGEL, District Judge.
Claimant-Appellant Earl Thompson appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) holding that he was not a prevailing party under the Equal Access to Justice Act (“EAJA”),
I.
Mr. Thompson served in the United States Navy from October 1973 to January 1975. During active service, he was treated for psychiatric symptoms that were attributed to immature personality disorder. Over the following years, he was hospitalized sporadically based upon complaints of a nervous disorder and an inability to get along with others. In 1984 he was diagnosed as a paranoid schizophrenic. He was hospitalized for schizophrenia several times between 1984 and 1991.
In 2006, a Regional Office (“RO”) of the Department of Veterans Affairs (“VA”) issued a rating decision finding no service connection with respect to any acquired psychiatric
Mr. Thompson then moved for attorneys’ fees and costs in the Veterans Court, asserting that the grant of the JMR made him a prevailing party under EAJA. That motion was denied in a single-judge decision issued on June 1, 2010 and by a subsequent panel decision issued on November 19, 2010. This timely appeal followed.
“Our jurisdiction in veterans cases is limited by statute.” Halpern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir. 2004). In particular,
We have “recognized, however, that where adoptiоn of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law.” Halpern, 384 F.3d at 1306. Applying this principle, we have conducted de novo review of the Veterans Court’s determinations of prevailing party status in a number of cases. See, e.g., Gurley v. Peake, 528 F.3d 1322, 1326 (Fed. Cir. 2008); Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir. 2007).
Under EAJA, a “prevailing party” is entitled to recover attorneys’ fees and expenses incurred in a civil action brought by or against the United States unless the position of the United States was substantially justified оr other circumstances make an award unjust. See
A veteran seeking an EAJA award has the burden of proving that he or she is a prevailing party. See Davis, 475 F.3d at 1366. “Prevailing party status requires ‘some relief on the merits.’” Gurley, 528 F.3d at 1326 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001)). Remand to an administrative agency “may confer prevailing party status because ‘[s]ecuring a remand to an agency can constitute the requisite success on the merits.’” Id. (quoting Kelly, 463 F.3d at 1353). “[W]here the plaintiff secures a remand requiring further agency proceedings because of alleged
III.
In the present case, the Veterans Court’s order granting the JMR was extremely brief, reading in its entirety as follows:
The parties have filed a joint motion tо remand this appeal to the Board of Veterans’ Appeals (BVA). It is
ORDERED that the motion for remand is granted and that part of the BVA’s decision that denied entitlement to service connection for an acquired psy-
chiatric disоrder, to include schizophrenia is remanded, pursuant to 38 U.S.C. § 7252(a) , for compliance with the instructions in the joint motion, which is incorporated herein by reference. The appeal as to the remaining issues is dismissed. Under Rule 41(b) of the Court’s Rules of Practice and Procedure, this order is the mandate of the Court.
The order does not contain a judicial finding of administrative error, nor has the VA conceded any such error. Accordingly, the default rule – no error – apрlies unless Mr. Thompson can prove that the remand must have been predicated on administrative error.
The single judge of the Veterans Court who initially denied Mr. Thompson’s EAJA application concluded that Clemons created new lаw and thus that the remand did not constitute relief on the merits. See Akers v. Nicholson, 409 F.3d 1356, 1359 (Fed. Cir. 2005) (holding that remand for application of an intervening case does not render the claimant a prevailing party). The panel that subsequently considered the issue concluded that Clemons did not create new law but merely reiterated established principles. The panel nonetheless determined that the remand was not predicated on administrative error, observing that “even in the absence of error below, nothing prevents the parties from jointly agreeing to request that the Court remand a matter for the Board to consider established law, or for any other proper purpose, without an admission of errоr, or otherwise prevents the Court from granting such a JMR.”
To the extent that Mr. Thompson challenges the Veterans Court’s factual determination that the remand was not predicated on administrative error, or its application оf EAJA to the facts of this case, we lack jurisdiction under the standards set forth above. However, we may address as a
Even if we were to agree with Mr. Thompson’s interpretation of Clemons, it is not apparent that the Veterans Court subscribed to that interpretation at that time that it granted the JMR. The parties themselves seemingly believed that Clemons had changed the legal landscape, as the JMR cited James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), which provides for retroactive application of a new rule of federal law. The clear purpose of the JMR was to ask the Board tо reevaluate Mr. Thompson’s claim in light of Clemons. These circumstances do not support a finding that at the time the Veterans Court granted the parties’ JMR, it did so because of any actual or perceived administrative error on thе part of the Board. See Davis, 475 F.3d at 1364 (controlling question is whether the Veterans Court’s remand order was “implicitly predicated on administrative error”).
We recognize that EAJA is an important component of the framework within which veterans may seek benefits. However, inappropriately broad application of the statute could have the unintended and unfortunate consequence of discouraging the government from cooperating in the prеsentation of joint motions for remand, thus hindering rather than aiding veterans seeking to vindicate their rights. We cannot agree with Mr. Thompson’s assertion that he is entitled to fees and expenses in this case.
No costs.