determining that “an appellant receiving a remand under the rule of retroactive application, that is, an appellant who receives a remand solely because of a change in case-law during the pendency of his or her appeal, is not an EAJA prevailing party”
How later courts described this case
- determining that “an appellant receiving a remand under the rule of retroactive application, that is, an appellant who receives a remand solely because of a change in case-law during the pendency of his or her appeal, is not an EAJA prevailing party”
- expressing agreement with concurring opinion of Kramer, C.J., in Cullens, supra, expressing view that at EAJA stage Court should not re-review merits of case and "it is the Court’s remand order or decision and any joint motions underlying that order or decision (as well as any concessions or error made in the parties' pleadings) that properly should be the focal point of any substantial-justification determination”
- “[A]n appellant receiving a remand under the rule of retroactive application, that is, an appellant who receives a remand solely because of a change in caselaw during the pendency of his or her appeal, is not an EAJA prevailing party.”
Written by the judges who cited it.
The opinion
GREENE, Judge,
concurring:
I concur that Mr. Flemming is not a prevailing party under EAJA. I write separately to express my view that in Brewer v. West, 11 Vet.App. 228 (1998), the Court held that the rule of retroactive application requires that new caselaw be applied ret *55 roactively by the Court to all matters pending before the Court. In Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the criteria for determining the materiality of newly presented evidence. This Federal Circuit opinion required remanding for re-adjudication those cases involving the issue of the materiality of new evidence under 38 C.F.R. § 3.156 (a). Applying the same retroactive application rule of Brewer , Mr. Flemming’s claim was remanded to the Board by this Court after the Court noted that “since Hodge , this Court has remanded many cases in order for the BVA to apply that regulation as to claims to reopen.” Flemming v. West, No. 97-2150, 1999 WL 219986 , at *1 (Vet.App. Apr.2, 1999).
Further, I agree that no precedential decision of this Court has addressed the effect, if any, of a remand for retroactive application of a new judicial interpretation on the question of whether administrative error has occurred with respect to EAJA prevailing-party status. However, a close analogy can be found in Hewitt v. Helms, 482 U.S. 755 , 107 S.Ct. 2672 , 96 L.Ed.2d 654 (1987). In Hewitt , the Supreme Court held that a plaintiff was not a prevailing party simply by virtue of an appellate court’s favorable statement of law, because the statement afforded plaintiff no relief on the merits on that claim and was “not the stuff of which legal victories are made.” Id. at 760 , 107 S.Ct. 2672 . Here, Mr. Flemming did not receive the benefit sought in bringing the litigation, i.e., the award of a benefit, the recognition by the Court of an administrative error, or a concession by the Secretary of administrative error. Rather, he is the beneficiary of the retroactive application of a favorable statement of law that under these circumstances would not constitute administrative error. See Sachs v. Principi, 15 Vet.App. 414 (2002).