holding that Secretary's position not substantially justified at administrative stage where Secretary had conceded at merits stage that Board failed to follow established law, even though Court had not so found at merits stage
How later courts described this case
- holding that Secretary's position not substantially justified at administrative stage where Secretary had conceded at merits stage that Board failed to follow established law, even though Court had not so found at merits stage
- holding that Secretary’s position at administrative level was not substantially justified where Secretary conceded, during litigation phase, that error had occurred at administrative level
- using discretion to award 80 percent of fees where the applicant would have prevailed on two of four claims appealed
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
Our caselaw has uniformly held that, in determining whether the Secretary’s administrative position was substantially justified, the Court will not readjudicate the appeal de novo, but rather, in making such a determination, the Court will focus on the language of the Court’s remand order and, if applicable, the language of a joint motion for remand. See Jackson v. West, 12 Vet.App. 422, 427 (1999); Stephens v. West, 12 Vet.App. 115, 118-19 (1999); Dillon v. Brown, 8 Vet.App. 165, 168 (1995). Today, the Court creates a narrow exception to this general rule that the Court will not look beyond what the Board was required to do under the terms of the remand ordered by the Court, but only where, as here, the Secretary has explicitly conceded and requested a remand for an error not referenced in a joint motion or in the Court’s order. Cf. Jackson, supra (in determining the reasonableness of the Secretary’s administrative position, the Court will not consider the appellant’s allegations of error that were not addressed in the Court’s remand order).