Veteranclaims’s Blog

June 25, 2012

Thompson v. Shinseki, No. 2011-7064 (Decided: June 25, 2012); Davis, 475 F.3d at 1366; Prevailing Party Status

Excerpt from decision below:
““EAJA is a vital complement to this system designed to aid veterans,
because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.” Id.
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.’”
============================

United States Court of Appeals
for the Federal Circuit
__________________________
EARL THOMPSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7064
__________________________
Appeal from the United States Court of Appeals for Veterans
Claims in Case No. 09-1026, Chief Judge Bruce E.
Kasold.
___________________________
Decided: June 25, 2012
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
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.
THOMPSON v. DVA 2
TIMINSKI, Deputy Assistant General Counsel and AMANDA
R. BLACKMON, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
__________________________
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”), 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”) issued a rating decision finding no
service connection with respect to any acquired psychiatric
* Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of California,
sitting by designation.
THOMPSON v. DVA 3
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 benefits
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 disorder other than PTSD, the Veterans
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 existed. 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 Veterans 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.
1 Mr. Thompson also appealed several earlier rating
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 withdrew
those rating decisions from appellate review.
THOMPSON v. DVA 4
II.
“Our jurisdiction in veterans cases is limited by statute.”
Halpern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir. 2004).
In particular, 38 U.S.C. § 7292(d)(2) provides that, “Except
to the extent that an appeal under this chapter presents a
constitutional issue, the Court of Appeals may not review
(A) a challenge to a factual determination, or (B) a challenge
to a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2). As a result, we review the
Veterans Court’s interpretation of EAJA without deference,
but we are precluded from reviewing its application of EAJA
to the facts of a particular case. See Vaughn v. Principi, 336
F.3d 1351, 1354 (Fed. Cir. 2003).
We have “recognized, 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, 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 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
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-
THOMPSON v. DVA 5
ensure that persons will not be deterred from seeking review
of, or defending against, unjustified governmental
action because of the expense involved in the vindication of
their rights.” Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed.
Cir. 2006) (internal quotation marks and citations omitted).
“Removing such deterrents is imperative in the veterans
benefits context, which is intended to be uniquely proclaimant
. . . and in which veterans generally are not represented
by counsel before the RO and the board.” Id. “EAJA
is a vital complement to this system designed to aid veterans,
because it helps to ensure that they will seek an appeal
when the VA has failed in its duty to aid them or has otherwise
erroneously denied them the benefits that they have
earned.” Id.
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
tion to any costs awarded pursuant to subsection
(a), incurred by that party in any civil action (other
than cases sounding in tort), including proceedings
for judicial review of agency action, brought by or
against the United States in any court having jurisdiction
of that action, unless the court finds that the
position of the United States was substantially justified
or that special circumstances make an award
unjust.
THOMPSON v. DVA 6
error by the agency, the plaintiff qualifies as a prevailing
party . . . without regard to the outcome of the agency
proceedings where there has been no retention of jurisdiction
by the court.” Former Employees of Motorola Ceramic
Products v. United States, 336 F.3d 1360, 1366 (Fed. Cir.
2003).3 At the same time, “[w]here there has been a remand
to an administrative agency without a judicial finding of
administrative error or a concession of such error by the
agency, the default rule is that the remand is not based on
administrative error for EAJA purposes under the Motorola
test.” Davis, 475 F.3d at 1366. “This default rule places the
burden on the EAJA applicant to prove, based on the record,
that the remand had to have been predicated on administrative
error even though the remand order does not say so.”
Id.
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 to 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-
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).
THOMPSON v. DVA 7
chiatric disorder, 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 – applies 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 law and thus that the remand did not
constitute relief on the merits. See Akers, 409 F.3d at 1359
(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 error, 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 of
EAJA to the facts of this case, we lack jurisdiction under the
standards set forth above. However, we may address as a
THOMPSON v. DVA 8
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 obligations
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 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 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,
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 presentation
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.
THOMPSON v. DVA
9
AFFIRMED
No costs.

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