Case Information
*2 Before N EWMAN , B RYSON , Circuit Judges , and F OGEL ,
District Judge . [*]
F OGEL , 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”), 28 U.S.C. § 2412(d), and that as a result he was not entitled to recover attorneys’ fees and costs. We have jurisdiction pursuant to 38 U.S.C. § 7292, and we affirm.
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”) issuеd a rating decision finding no service connection with respect to any acquired psychiatric disorder that Mr. Thompson might be suffering. Mr. Thompson appealed that rating decision to the Board of Veterans’ Appeals (“the Board”) and then appealed the Board’s unfavorable decision to the Veterans Court. [1] Before the Veterans Court reached the merits of the appeal, the parties filed a joint motion for partial remand (“JMR”) citing that court’s intervening decision in Clemons v. Shinseki , 23 Vet. App. 1 (2009). In Clemons , the claimant sought bene- fits for post-traumatic stress disorder (“PTSD”). The Board denied benefits based upon a determination that the record did not support a diagnosis of PTSD. The Veterans Court granted a JMR, directing the Board to consider record evidence that the claimant had an anxiety disorder or a schizoid disorder. While acknowledging that the claimant had not asserted any disоrder other than PTSD, the Veter- ans Court held that the claimant was not competent to determine what disorder caused his symptoms and that it was the responsibility of the Board to determine what mental condition actually еxisted. Id . at 6. The JMR filed in the present case requested that the Board be directed to “consider and address the legal proposition outlined in Clemons as it applies to the particular facts of this case.” The Vetеrans Court granted the JMR on September 29, 2009.
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.
II.
“Our jurisdiction in veterans cases is limited by statute.”
Halpern v. Principi
,
We have “recоgnized, however, that where adoption 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
,
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 unlеss the position
of the United States was substantially justified or other
circumstances make an award unjust.
See
28 U.S.C.
2412(d)(1)(A).
[2]
“The essential objective of the EAJA is to
ensure that persons will not be deterred from seeking re-
view of, or defending against, unjustified governmental
action because of the expense involved in the vindication of
their rights.”
Kelly v. Nicholson
,
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
,
III.
In the prеsent 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 to remand this appeal to the Board of Veterans’ Appeals (BVA). It is
ORDERED that the mоtion for remand is granted and that part of the BVA’s decision that denied enti- tlement to service connection for an acquired psy- chiatric disorder, to include schizophrenia is re- manded, pursuant to 38 U.S.C. § 7252(a), for com- pliance with the instructions in the joint motion, which is incorporated herein by reference. The ap- peal as to the remaining issues is dismissed. Under Rule 41(b) of the Court’s Rules of Practice and Pro- cedure, this order is the mandаte of the Court.
The order does not contain a judicial finding of administra- tive error, nor has the VA conceded any such error. Accord- ingly, the default rule – no error – applies unless Mr. Thompson can prove that thе remand must have been predicated on administrative error.
The single judge of the Veterans Court who initially de-
nied Mr. Thompson’s EAJA application concluded that
Clemons
created new law and thus that the remand did not
constitute relief on the merits.
See Akers
,
To the extent that Mr. Thompson challenges the Veter- ans Court’s factual determination that the remand was not predicated on administrative error, or its application of EAJA to the facts of this case, we lack jurisdiction under the standards set forth above. However, we may address as a question of law Mr. Thompson’s contention that a remand based upon Clemons necessarily must have been predicated on administrative error. Mr. Thompson argues that if Clemons merely recited established principles, then the remand for further proceedings consistent with Clemons necessarily implied that the Board failed to fulfill its obliga- tions in the first instance. He asserts that if the Board committed such administrative error, then he is entitled to prevailing party status.
Even if we were to agree with Mr. Thompson’s interpre-
tation of
Clemons
, it is not apparent that the Veterаns
Court subscribed to that interpretation at that time that it
granted the JMR. The parties themselves seemingly be-
lieved 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 cleаr purpose of the JMR was
to ask the Board to 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 the part of the Board.
See Davis
,
We recognize that EAJA is аn 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 pres- entation of joint motions for remand, thus hindering rather than aiding veterans seeking to vindicate their rights. We cannot agree with Mr. Thompson’s assertion thаt he is entitled to fees and expenses in this case.
AFFIRMED
No costs.
Notes
[*] Honorable Jeremy Fogel, District Judge, United States District Court for the Northern District of California, sitting by designation.
[1] Mr. Thompson also appealed several earlier rаting decisions that had denied service connection for a nervous condition (May 1978 rating decision) and for schizophrenia (May 2000 and May 2001 rating decisions). He later with- drew those rating decisions from appellate review.
[2] Section 2412(d)(1)(A) reads in full as follows: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addi-
[3] In contrast, “a remand to an administrative agency to consider the effects of legislation enacted while the case was on appeal does not constitute securing relief on the merits.” Motorola , 336 F.3d at 1366 (citing Vaughn , 336 F.3d at 1355). Nor does a remand for application of an intervening case. See Akers v. Nicholson ,409 F.3d 1356 , 1359-60 (Fed. Cir. 2005).