Veteranclaims’s Blog

April 7, 2016

Dover v. MacDonald, No. 2014-7124(Decided: April 7, 2016); Prevailing Party Status; Further Agency Processing

Excerpt from decision below:

“The Veterans Court denied fees, reasoning that the appellant was not the prevailing party because the remand order contemplated only dismissal by the Board rather than further agency proceedings. We reverse because the remand order expressly contemplated, and the appellant received, further agency proceedings, sufficient for prevailing party status under our precedents.”

=======================

United States Court of Appeals for the Federal Circuit
______________________
LYDIA C. DOVER,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7124
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2648, Judge Robert N. Davis.
______________________
Decided: April 7, 2016
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
JESSICA COLE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT
D. AUSTIN; Y. KEN LEE, BRIAN D. GRIFFIN, MARTIE
ADELMAN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
______________________
DOVER 2 v. MCDONALD
Before LOURIE, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
Appellant sought her attorney’s fees under the Equal
Access to Justice Act (“EAJA”) after winning vacatur and
remand from the Court of Appeals for Veterans Claims
(“Veterans Court”) to the Board for Veterans’ Appeals
(“Board”). The Veterans Court denied fees, reasoning that the appellant was not the prevailing party because the remand order contemplated only dismissal by the Board rather than further agency proceedings. We reverse because the remand order expressly contemplated, and the appellant received, further agency proceedings, sufficient for prevailing party status under our precedents.
BACKGROUND
Mr. Jack Dover served in the United States Navy from
1956 to 1960. In 1968, he filed a claim with the VA
regional office (“RO”) for service-connected disability
benefits relating to various conditions, including “palmar
hyperkeratosis” in his left hand. His claim for the hand
injury was denied, and he did not appeal. In 2004, Mr.
Dover attempted to reopen the claim, but the RO found
that he had not submitted new and material evidence to
support reopening.
In 2008, Mr. Dover requested that the VA review for
clear and unmistakable error (“CUE”) its original 1968
decision and the 2004 refusal to reopen. In February
2009, the RO granted service connection based on new
medical evidence and assigned an effective date of March
23, 2006, the date of another request to reopen the claim
for service connection. In December 2009, Mr. Dover
appealed for an earlier effective date of March 4, 1968,
but the RO found no CUE in its prior decisions. In January
2011, Mr. Dover responded with more detailed arguments,
but in July of that year, the Board issued a final
ruling of no CUE with respect to the effective date.
DOVER v. MCDONALD 3
Mr. Dover appealed to the Veterans Court. While the
appeal was pending, he passed away. Mrs. Dover substituted
into her husband’s appeal and argued that his 2008
CUE claim was so lacking in specificity that the Board
should have dismissed it without prejudice and without
reaching the merits, as required by Board regulations.
See 38 C.F.R. § 20.1404(b). She requested remand so she
could refile the CUE claim with the requisite specificity.
The VA conceded that it erred by failing to dismiss Mr.
Dover’s non-specific CUE claim.
The Veterans Court agreed that the case should have
been dismissed, and it therefore vacated and remanded
the Board’s decision. The Veterans Court did not order
the Board to dismiss the case. Instead, it provided the
Board with the following remand instructions:
On consideration of the foregoing, the Court SETS
ASIDE the Board’s July 22, 2011, decision, and
REMANDS the matter for further proceedings
consistent with this decision. In pursuing her
claim on remand, the appellant will be free to
submit additional evidence and argument in support
of her claim, and the Board is required to
consider any such evidence and argument.
J.A. 68 (emphasis original).
On remand, the Board dismissed Mr. Dover’s 2008
claim without prejudice but treated the January 2011
submission of additional arguments as a separate CUE
claim. The Board then remanded the matter to the RO
for consideration on the merits.
Mrs. Dover moved under the EAJA for attorney’s fees
incurred in pursuing her appeal. The EAJA provides fees
for a “prevailing party” when the government’s litigation
position was not substantially justified. See 28 U.S.C.
§ 2412(d). The Veterans Court rejected Mrs. Dover’s
motion because it believed that its remand was for disDOVER
4 v. MCDONALD
missal and because our precedent in Halpern v. Principi,
384 F.3d 1297 (Fed. Cir. 2004) prevents an appellant who
wins a remand for dismissal from claiming “prevailing
party” status. Mrs. Dover appeals to this court. We have
jurisdiction under 38 U.S.C. § 7292(c).
On appeal, Mrs. Dover argues that the Veterans Court
applied the wrong legal standard to determine whether
she was the prevailing party. She argues that the standard
is not whether her relief was limited to Board dismissal,
but whether there was a change in the legal
relationship of the parties. She argues that the Veterans
Court’s decision changed her legal relationship with the
Board because it permitted her to pursue her claim.
The VA counters that the Veterans Court correctly applied
Halpern. In Halpern, we found that the appellant
was not a “prevailing party” because the remand order
“simply direct[ed] the Board to dismiss the action for lack
of original jurisdiction.” Id. at 1306. The VA argues that,
even though the Board granted Mrs. Dover additional
proceedings following remand, Mrs. Dover was still not a
prevailing party because the Board’s actions contravened
the remand order, and there was therefore no change in
the legal relationship of the parties.
DISCUSSION
We review an interpretation of the EAJA by the Veterans
Court without deference. Jones v. Brown, 41 F.3d
634, 637 (Fed. Cir. 1994).
The EAJA provides that “a court shall award to
a prevailing party other than the United States fees and
other expenses . . . incurred by that party in any civil
action . . . unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). To determine whether an appellant is the
“prevailing party,” “the correct legal standard . . . is [that]
DOVER v. MCDONALD 5
a party must receive ‘at least some relief on the merits of
his claim.’” Vaughn v. Principi, 336 F.3d 1351, 1356–57
(Fed. Cir. 2003) (quoting Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 603 (2001)). Relief on the merits requires a “material
alteration of the legal relationship of the parties.” Buckhannon,
532 U.S. at 604; see also Former Emps. of
Motorola Ceramic Prods. v. United States, 336 F.3d 1360,
1364 (Fed. Cir. 2003) (“[T]o be a prevailing party, one
must receive at least some relief on the merits, which
alters the legal relationship of the parties.” (internal
quotations and citations omitted)).
Traditional examples of relief on the merits include
judgments on the merits and consent decrees. See
Vaughn, 336 F.3d at 1357; see also Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989).
In contrast, “[m]inimal relief resembling an interlocutory
ruling that reverses a dismissal for failure to state a claim
or a reversal of a directed verdict will not satisfy the
statutory requirements to achieve prevailing party status.”
Vaughn, 336 F.3d at 1357 (internal quotations
omitted); see also Hewitt v. Helms, 482 U.S. 755 (1987);
Hanrahan v. Hampton, 446 U.S. 754 (1980).
Remand for further proceedings by a lower civil court
in the federal system is not typically considered relief on
the merits. See, e.g., Hewitt, 482 U.S. at 762; Hanrahan,
446 U.S. at 758–59. We have held, however, that remand
to an administrative agency is different. See Motorola,
336 F.3d at 1365. An appeal of an agency decision “is
treated as a separate proceeding from the administrative
proceeding, and a remand may [therefore] constitute the
securing of relief on the merits.” Id. Consequently, we
have held that where the remanding court has not retained
jurisdiction, a remand to an administrative agency
is relief on the merits if the remand was necessitated by
DOVER 6 v. MCDONALD
agency error, and the remand calls for further agency
proceedings. Id. at 1366.
Here, the parties agree that the remand was necessitated
by agency error, and the remanding court did not
retain jurisdiction. The disputed issue is only whether
the remand calls for further agency proceedings within
the meaning of Motorola.
The VA argues that the requirements of Motorola are
not met because—notwithstanding the remand order’s
call for “further proceedings”—the order as a whole suggested
that those proceedings should be limited to dismissal.
The VA relies on Halpern, in which we held that a
remand instructing the agency to dismiss for lack of
jurisdiction does not call for further agency proceedings
within the meaning of Motorola. Halpern, 384 F.3d at
1306. We disagree that Halpern dictates the outcome of
this case.
Halpern is distinguishable from the present case. In
Halpern we found “nothing in the Veterans’ Court’s
disposition of this case that requires further agency
proceedings.” Id. In contrast, the remand order here
explicitly calls “for further proceedings.” J.A. 68. The
order further instructs the Board that it must permit Mrs.
Dover “to submit additional evidence and argument in
support of her claim,” and that it is “required to consider
any such evidence and argument.” Id. On remand, the
Board complied with these instructions by granting Mrs.
Dover further proceedings on the merits. Because the
remand order both contemplated and precipitated further
agency proceedings on the merits, we conclude that Mrs.
Dover was the prevailing party.
We are not persuaded by the VA’s argument that Mrs.
Dover was not the prevailing party simply because the
remand opinion indicated that the Board should have
dismissed Mrs. Dover’s claim without prejudice. First, as
DOVER v. MCDONALD 7
noted above, the remand order called for further proceedings.
Second, even if the remand order were understood
as instructing the Board to dismiss the case without
prejudice, that would not foreclose Mrs. Dover from being
the prevailing party. In Motorola, we held that if the
remanding court does not retain jurisdiction, a remand for
agency error makes the appellant the prevailing party
“without regard to the outcome of the agency proceedings.”
Motorola, 336 F.3d at 1366. Because the ultimate
merits determination is irrelevant, Halpern requires only
that the remand leave the possibility of attaining a favorable
merits determination through further agency proceedings.
In Halpern, that possibility was foreclosed
because the Veterans Court vacated on jurisdictional
grounds. See Halpern, 384 F.3d at 1306. In this case, the
possibility of a favorable merits determination was not
foreclosed because the Veterans Court vacated on procedural
grounds. The remand simply cleared a procedural
hurdle (i.e., an adverse ruling on the merits with prejudice)
so that Mrs. Dover could pursue additional proceedings
on the merits.
Mrs. Dover was the prevailing party because the remand
she won was necessitated by agency error, the
remand called for—and Mrs. Dover received—further
agency proceedings, and the Veterans Court did not
retain jurisdiction. The Veterans Court’s determination
the Mrs. Dover is not entitled to attorney’s fees under the
EAJA as a prevailing party is therefore reversed.
REVERSED
COSTS
Costs to Dover.

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