*1 July on argument 2002. The heard oral outcome argues here that “the SIMMONS, Appellant, Cook, controlling, although perhaps D. of Richard great assistance the Court”. be of will
v. 3, 2002, reply, In his Resp. at 2. October that he does not indicates PRINCIPI, Secretary Anthony of J. Reply at 1-2. object stay. such Affairs, Appellee. Veterans regarding cases in the two issues No. 98-354. duty with claims of clear assist in connection Appeals States Court United (CUE) are sub- and unmistakable error Claims. for Veterans similar, disposition and the stantially materially instant affect the Cook could Nov. 2002. Therefore, interest proceedings. stay fur- economy, the will judicial HOLDAWAY, STEINBERG, Before pend- proceedings in instant case ther GREENE, Judges. of Cook. ing disposition foregoing, it is Upon consideration ORDER Secretary’s unop- ORDERED pending stay proceedings posed request to PER CURIAM. Cook, supra, granted disposition per issued a On June of the Court. pending further order August withdrawing the curiam order ordering par panel decision and re supplemental file memoranda ties to re Secretary’s supplemental
garding the effect, any, on instant
sponse and the Principi, 251 F.3d v.
appeal of Roberson
(Fed.Cir.2001),
American
Disabled
(Fed.Cir.
Gober,
Cook, the Federal January banc,
Circuit, F.3d sitting en (Fed.Cir.2002), parties ordered efficacy Hayre, supra,
brief
Kathy Lieberman, A. Washington, DC, was on the pleadings for appel- lant. McClain,
Tim Counsel; S. General Ron Garvin, Counsel; Assistant General Caro- lyn F. Washington, Deputy Assistant Gen- Counsel; Katina, eral and Michele R. all of DC, Washington, were on pleading appellee. KRAMER, Before Judge, Chief HOLDAWAY, FARLEY and Judges. KRAMER, Judge, Chief filed the FARLEY, opinion of the Court. Judge, a concurring HOLDAWAY, filed opinion. Judge, a dissenting opinion. filed
KRAMER, Judge: Chief Before appellant’s is the appli- attorney cation for fees $13,624.31 the amount pursuant to the Act, Equal Access to Justice 28 U.S.C. applica 30-day EAJA (EAJA). within the 2412(d) following rea- was filed For the (1) a it contained period and because application. tion sons, grant will applicant prevailing is a showing I. FACTS showing party that he is a party; *3 net worth an award because his eligible for appealed through counsel appellant The (3) $2,000,000; allega an does not exceed the 24,1998, Board decision a December position was not Board) Secretary’s the (BVA tion that Appeals of Veterans’ (4) justified; itemized substantially an prison as a recognition former denied him and ex attorney fees the (POW) The statement purposes. VA er of war 28 U.S.C. sought. See penses deci by memorandum single-judge Court Gober, 14 2412(d)(1)(B); v. Vet. § Cullens de the 1998 BVA sion affirmed December banc). (2001) (en 234, App. 237 Vet.App. Thompson v. cision. 19, (May 99-515, 815484 No. 2000 WL Secretary conceded that The has dec.). 2000) (mem. party and that prevailing a appellant the a counsel appellant through filed The special circumstances there are A November panel motion for a decision. unjust. an award in this case make would 22, 2000, by panel of Court order a however, contests, the ap motion, May granted that withdrew allegation po that the pellant’s decision, vacated memorandum 2000 justified. substantially was not sition decision, re December 1998 BVA Where, here, alleged has appellant Gober, Thompson matter. manded the Secretary’s position was sub 187, (per 14 curiam 189 has the justified, stantially order). order, the In 2000 the November prove position that his was sub burden erred that the Board had Court concluded justified at administra stantially both material evi failing to consider certain Cullens, 14 litigation stages. See tive and that a appellant to the Brown, dence favorable 237; Vet. Vet.App. at Stillwell necessary (1994). Stillwell, remand was 291, App. and to favorable evidence consider that government’s held that Court statement of reasons adequate justified demon substantially VA at 189. Thompson, or bases. position, of its the reasonableness strates also order was A dissent totality the circumstances. based J., (Holdaway, dissent Id. at 189-98 filed. Locher v. Id. at see also ing). ‘“[A] not cor though it is justified even can be 28, 2001, filed appellant On March (i.e., rect, ... can be it 3, 2001, July On application. an EAJA justified if reasonable part) a for the most he response in which Secretary filed correct, is, if it it think person could only as to the substan- arguments makes ” fact.’ in law and basis has Secretary’s position. justification tial Stillwell, (quoting Pierce Vet.App. at 302 2, 2001. replied on October Underwood, n. 487 U.S. (1988)). In L.Ed.2d S.Ct. II. ANALYSIS following Stillwell, provided the at- jurisdiction to award has This Court amplification: further to 28 pursuant torney fees may also circumstances 2412(d)(2)(F). special Two The March U.S.C. upon the reasonableness bearing any jurisdic- have met VA, and position of the litigation because requirements tional and content “[tjhere reasonable), by the action inaction VA because was ‘sol the administrative level. One is the evo- support id’ the Board’s evidence deci lution VA benefits law since the cre- genuine sion” and because there was a ation of this that has often result- (as dispute evidentiary support) to that new, different, stringent ed in or more among judges panel as shown adjudication. requirements for The sec- the withdrawn memorandum decision. ond some cases before this Court Response (Resp.) supports at 10-12. He impression involving are ones of first argument by citing to two Social Secu good arguments government faith cases, rity Administration Stein v. Sulli eventually rejected by that are van, (7th Cir.1992); *4 966 F.2d 320 Pul Court. (4th Bowen, 105, v. len 820 F.2d 109 Cir. Stillwell, 6 at Vet.App. 303. 1987), Cullens, to a 14 dissent in Vet. J., App. (Holdaway, at dissenting). 251-52 required provide
The is to Board However, the error here was not that the a written statement of the reasons or bas supported by Board’s decision was not ad on all findings es its conclusions evidence; equate the error was that presented material issues of fact and law record; on the the statement must be ade Board failed to discuss material evidence quate to appellant. enable claimant to understand to that was favorable decision, precise basis the Board’s component “favorable evidence” well to in as facilitate this Court. review requirement, “reasons or bases” first artic 7104(d)(1); Allday See 38 U.S.C. v. 1990, ulated in longstanding precedent is a Brown, 517, (1995); Vet.App. 7 527 Simon case, therefore, of this This Court. Derwinski, 621, (1992); v. 2 Vet.App. 622 distinguishable from this Court’s decisions Derwinski, 49, Vet.App. Gilbert v. 1 57 Secretary’s that have concluded that (1990). comply To with this requirement, position administrative analyze credibility Board must because, justified although the Board had evidence, probative value account particular in applying interpre erred VA persuasive for the evidence that it finds or tation, only the error found after the unpersuasive, provide the reasons for subsequently Court had invalidated that rejection any its material evidence fa interpretation and the matter was one of to vorable the claimant. See Caluza v. impression law first or the had been a Brown, 498, (1995), 7 Vet.App. aff'd, 506 78 (i.e., See, confusing tapestry disputable). (Fed.Cir.1996) (table); F.3d 604 Gabriel Locher, 537-40; e.g., 9 at Felton Brown, 36, (1994); v. 7 Vet.App. son 39-40 Brown, 276, (1994); v. 7 280-84 Gilbert, supra. Brown, 127, Gregory 7 Vet.App. v. 128 (1994); Stillwell, Vet.App. 6 at 303. This above, As noted in its by opinions controlled those in expressly November 2000 order deter which the Court determined that the Sec failing mined that the Board in had erred retary’s position substantially jus was not to discuss material to evidence favorable pro tified based the Board’s to appellant. Thompson, 14 failure Vet.App. at adequate an vide statement of or response 189. to the reasons applica tion, Brown, that, Vet.App. 303, bases. See ZP v. 8 argues even (1995) order); though (per Eleyzyn in 304 curiam failing Board erred dis (1994). cuss favorable 7 Secretary’s 176 Such a stage at the administrative “reasons or bases” error has no reasonable (i.e., substantially justified the BVA in basis law fact and involves neither a ‘product of reasonable “[T]he a matter evolution nor recent caselaw Stillwell, Vet.App. normally at rate’ impression. hours times first 302-03; ZP, Vet.App. Elcyz attorney’s at fee.” provides see a ‘reasonable’ Stenson, at 176. yn, Vet.App. Blum U.S. (quoting 79 L.Ed.2d Hens S.Ct. that this case is maintains Eckerhart, ley U.S. Elcyzyn on distinguishable (1983)). 1933, 76 S.Ct. L.Ed.2d 40 “The ground Elcyzyn the Board just the actual must determine not [Court] an ade- failing provide both erred counsel, expended hours but which of quate of reasons or bases statement reasonably expended those hours were support independent medical Lamm, 713 litigation.” Ramos v. F.2d conclusions, whereas here Cir.1983). (10th regard, In that failing an ade- only erred will consider whether the hours quate statement of reasons bases. (1) unreasonable on their claimed were unavailing, That
Resp. argument at 15. face, by the otherwise contraindicated has and finds because this Court found Hensley, factors itemized today *5 430, 103 1933, Ussery 10 S.Ct. substantially stage was not administrative (1997), measuring rea Vet.App. 53 for justified only Board had where the erred sonableness, opposed persuasively failing statement adequate in to Chesser, 11 by Secretary. the See Vet. ZP, at Vet.App. bases. See 8 of reasons or App. at 501-02. 304. that concludes
Accordingly, the Court appellant requests reimbursement (98.5 has not met his burden the $13,419.64 time attorney in hours the position hour) that his at admin demonstrate in per at and $136.24 $204.67 justified, substantially stage not, istrative in Secretary did his expenses. The Stillwell, that VetApp. 6 at see application, contest response to the EAJA attor appellant is therefore entitled to $13,624.31 reasonableness Cullens, 14 ney expenses, fees and see appellant. on the sought by Based ZP, Vet.App. 8 Vet.App. at 244. See also case, con circumstances of Court at 176. Hav Elcyzyn, Vet.App. at requested amount is rea cludes that the not Chesser, ing concluded sonable, Vet.App. at 501- see in substantially justified position at grant appellant’s and will therefore not stage, administrative Court need application EAJA full. government’s litiga address whether the sub position before this Court was
tion III. CONCLUSION Locker, stantially Vet.App. justified. See Upon foregoing consideration 537; ZP, Vet.App. 304. 28, 2001, analysis, appellant’s March has that determined Once GRANTED. awarded, then are be must EAJA fees constitutes rea what amount determine FARLEY, concurring: Judge, attorney sonable fees of our elegant eloquent dissent 2412(d)(2)(A); Per See case. 28 U.S.C. express me to colleague prompts esteemed (1998). West, ry v. my beliefs that: has “The Court wide discretion cannot differ on the Reasonable minds attorney the EAJA.” award of fees under signed in 1993 497, 501 fact that veteran Chesser v. a “Former submitted POW Medical Histo- It is fundamental the fact that the government ry” report prevail does not on on he checked the ‘Tes” the merits is merely starting point inquiries determining in response boxes whether he position jus- whether its experienced “intimidation,” “beatings,” Underwood, tified. In Pierce 487 U.S. “psychological being torture” while de- n. 108 S.Ct. 101 L.Ed.2d during tained Switzerland World War (1988), Supreme Court ex- (R.) at II. Record 195. plained that position justified “a can be Reasonable minds cannot differ though correct, even it is not and we be- fact that the Board did discuss that (i.e., can lieve it be substantially for the Gober, Thompson report. justified part) most if a person reasonable 187, 188-89 can Nor reasonable correct, is, could think it if it has a minds differ on the additional fact in law reasonable basis and fact.” There- went far Board so state that “there fore, VA, if the taken although [was] nor [had] the veteran “incorrect,” ultimately determined to be claim[ed], experienced that he physical or is, debatable —that reasonable minds psychological hardships or abuse while in- could differ —then VA’s be must terned.” 6. R. at substantially justified. found to be More- over, this Court has govern- held that the minds, And reasonable presumably even “ ‘justified ment need not high to a Bumble, the fictitious Mr. cannot degree,’ ‘justified but rather in substance inescapable differ with the conclusions that is, or in the main’—that justified to a the Board’s erroneous ostrich-like treat degree that satisfy could per- *6 of report inexplicable ment this and its Brown, son.” Felton failure to include a report discussion of the (1994); Pierce, see also at in requisite the statement of or reasons 108 S.Ct. Stillwell decision, “compelled” bases its The interested majority the to remand this matter may Sullivan, reader wish to read Stein (Thompson, 189), at were not (7th Cir.1992), F.2d a Social Secu- substantially justified. rity disability benefits case cited Secretary, which has strikingly facts famil- HOLDAWAY, Judge, dissenting: case, iar to this summary for an excellent agree majority I appel- with the that the of justification. the law of substantial In lant was a prevailing party case, in the merits that the court denied an litigation and that aas result of that deci- EAJA, fees and under the (however may been), sion flawed it have despite the fact that the won inadequate case, which found reasons or bases rejecting merits appli- the EAJA Board, argument the Board was cant’s that an EAJA award However, legally agree granted incorrect. I do not should Secretary be because the justi- that the lacked substantial Health and Human Services had inade- quately position. fication for its I its note articulated assessment of the opinion relevant outset in evidence. The court reasoned: portion (and, this case for that That judge] [administrative law matter, well) in portion the merits failed to meet this articulation require- totally bereft a or legal analysis. factual way ment in no a finding necessitates pure It is conclusion. I will supply the Secretary’s position not necessary legal background. factual substantially justified.... not [W]e did is, analysis “materiality” of what Sec- est opinion that the in our earlier
find
majority compounds its
justification. was material. The
substantial
retary lacked
case,
in this
by doing
thing
the same
con-
error
only that there was some
heldWe
analysis.
without an
providing
failed
conclusion
that the
trary evidence
up
following
with the
consider,
They seem to come
at least failed to articu-
or
rule: because
Court concluded
he
There was
late that
considered....
November
posi-
was material
their
Secretary’s
document
support
evidence
Thus,
decision,
“on
the Board was somehow
dispute existed.
genuine
A
tion.
this
1998 that
evi-
court’s notice” in December
the district
we detect
undebatably
Whether
position was
dence was
material.
finding
crystal
to a
ball is
the Board had access
substantially justified.
But the “incorrectness” of
not mentioned.
(citations omitted).
Stein,
F.2d at 320
tunc,
decision,
pro
nunc
is not
the Board’s
case,
to the facts
this
Let us now turn
law
factor. As
cited
the critical
course,
mind,
general
bearing
established, if, at the time the
above has
In
just
the mer-
legal principles
outlined.
decision, materiality of
its
Board wrote
case,
artic-
found the Board’s
its
the court
debatable,
or reasonable
this evidence
That
inadequate.
bases
ulated reasons or
materiality,
minds
differ as
could
In so
for the remand.
was the sole basis
the Board’s
then
doing they only
general
cited a
rule
justified.
In
where the decision
cases
precedent
that all evidence
this Court’s
question
of whether reason-
unanimous
that is material
to the claimant
favorable
could
is theoretical.
able minds
differ
for in the reasons or
must
accounted
case,
undeniably
debate
there was
they
prece-
basis.
If
believed that cited
undeniably
there was
within the Court and
any
gave
put
dent
notice
as to
docu-
a difference
kind of evidence is
guidance as what
materiality.
ment’s
material,
they
operating
are
under
then
considerable delusion.
I
with
diffidence that
do note
some
a form
upon
piece
seized
one
analy-
I at
made a stab
my dissent
least
*7
an “X”
had marked
on which
my opin-
and
a reasoned basis
gave
sis
had
physical
that he
suffered
indicate
attempt.
majority made
such
ion. The
no
when interned
psychological hardship
and
of
point is that the issue
important
But the
during World
government
Swiss
was,
fact,
and there
materiality
debated
II,
Board did not discuss
War which the
minds,
was,
fact,
of
both of
a difference
that
The Court determined
its decision.
I,
least,
were reason-
say
would
which
require-
had not satisfied
my
I
brethren
concede to
able minds.
adequate reasons or bases
ment to
(and
wrong
egregiously
that however
not
solely on its
decision based
its
I think their conclusion
of
wrongheaded)
form, a form which
this
having discussed
was,
for minute con-
I don’t
a
materiality
and
by the claimant
contained no narrative
a debatable
they didn’t have
tend that
by earlier narrative
contradicted
been
opinion was one with
or that
point
specifi-
testimony from the claimant
person
agree.
could
no reasonable
which
hardships.
cally
such
disclaimed
dissent,
for not
my
gave
I
reasons
In
i.e.,
material,
finding the evidence
issue
split
of
Court
panel
The
equivocal, contra-
was
of
the evidence
piece
this
materiality
of
I
dicted,
While
best.
marginal
as
and
panel concluding,
majority
conclusory de-
purely
slight-
my
think
brethren’s
without even the
previously,
stated
“correct,”
debatably
portion
cisión
I wonder
done as that
of the merits
clearly
dictum
thus
they
materiality
decision
and
not
whether
didn’t confuse
binding precedent,
again,
but I do note
as
relevancy,
with
a common mistake.
dissent,
in my
I
Hensley
way
did
analysis
simply
of an
we
don’t
absence
precludes
initially
this
finding
any event,
think my position
know. In
I
is
facts
to those issues on appeal where
person
a
one that
could take.
the Board is not a factfinder.
panel
differently
Had the
been
it
composed
case,
In this
probable
adequacy
is as
as not
the issue was the
that there would have
of the Board’s reasons or bases. Obvious-
my
a
If
been
different result.
brethren
never,
ly,
be,
the Board is
and can never
disagree and wish to state a supposition
adequacy
factfinder as to
own
rea-
implicitly
explicitly
either
that no rea-
Court,
By necessity,
sons
bases.
agree
person
my opin-
sonable
could
with
to discharge
concerning
is
its duties
“non-materiality,”
ion of
then I assure
7261(b),
U.S.C.
the harmless error stat-
I
accept
them that will
such a conclusion
ute, must be the initial
on such
factfinder
amused,
bemused,
with
good
humor.
for,
Hensley
issue. Whatever
stands
However,
my
I
say
must
reaction would be
it is certainly
judicial
not a
model
similar to that of Mr.
Bumble
Oliver
craftsmanship, it shouldn’t be read as re-
supposes
Twist: “If
law
then
harmless
pealing the
provisions
ass,
law a
idiot.”
jurisdictional
our
statute.
If
read as
concurring opinion
I
Judge
note
broadly
majority
as the
did in the dictum
Farley,
colleague
for whom I
have
case,
exactly
in the merits
that is
what it
highest respect and affection. Neverthe- would do. If the Court can’t be the initial
less, I am
constrained
note that he
questions
fact finder on
adequa-
law like
entirely
bases,
avoids the issue.
I
crux cy
take the
of reasons or
then the harmless
error statute
I
opinion
meaningless.
expect,
to be thus:
is a
since it
hope,
that if the Federal Circuit had
person”
“reasonable
who reached this con-
repeal
meant
the harmless error stat-
clusion,
anyone disagree?
how could
ute,
it would have said so.
It
is this
Ergo,
be,
such
any
disagreement
per
must
interpret
Court’s function to
precedential
se,
Well, I
disagree
unreasonable.
do
narrowly
strictly.
interpre-
cases
my disagreement
eminently
reasonable.
in the
concerning
tation
merits case
Hens-
concurring
my
does reinforce
ley
It gave
was neither.
the broadest
suspicion that
has confused
possible interpretation in a
re-
form,
relevancy
obvious,
which is
motely
Hensley.
most,
like
At
Hensley
is,
least,
materiality,
with
at the
proposition
stands for the
that this Court
*8
only
and can
debatable
determined
cannot be the initial factfinder as to factual
context.
issues,
merits,
on the
reposed
that are
necessary
I feel it
add a
comment
Board.
On matters such
adequacy
part
one
merits
bases,
simply
of reasons or
Hensley
does
may
germane
not be
perhaps only
can,
apply.
should,
This court
issue,
indirectly affects the EAJA
and that
apply the
harmless
rule when assess-
misinterpretation
Hensley
ing putative
errors
reasons or bases.
(Fed.Cir.2000),
statute the evidence that
putatively, Perhaps “material.” harm