Briddell v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 99-1198

JOHN R. BRIDDELL, APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Motion for Panel Decision

(Decided August 23, 2002 )

Kathy A. Lieberman, of Washington, D.C., was on the pleadings for the appellant.

Tim S. McClain, General Counsel; Joan E. Moriarty, Acting Assistant General Counsel;

Thomas A. McLaughlin, Special Assistant to the Assistant General Counsel; and Christine D.

Senseman, all of Washington, D.C., were on the pleadings for the appellee.

Before FARLEY, STEINBERG, and GREENE, Judges.

STEINBERG, Judge, filed the opinion of the Court. GREENE, Judge, filed a concurring

opinion. FARLEY, Judge, filed a dissenting opinion.

STEINBERG, Judge: This matter is before the Court on the appellant's motion for a panel

decision, following denial by a single judge of the appellant's application for reasonable attorney fees

and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA).

The appellant, veteran John R. Briddell, previously appealed through counsel a March 18,

1999, decision of the Board of Veterans' Appeals (Board or BVA) that had denied increased

Department of Veterans Affairs (VA) ratings for chronic low-back pain and for postoperative

residuals of the left shoulder, and denied initial VA compensable ratings for chondromalacia of the

right and left patellas. Record at 4. On February 21, 2001, the Court, in a single-judge order,

vacated that Board decision and remanded the matters for readjudication. Briddell v. Principi, No.

99-1198, 2001 WL 197398, at *1 (Vet. App. Feb. 21, 2001) [hereinafter Remand Order]. On

June 12, 2001, the appellant timely filed, through counsel, his EAJA application, which the Court,

in a single-judge order, denied on December 17, 2001. Briddell v. Principi, No. 99-1198, 2001 WL

1609685, at *1 (Vet. App. Dec. 17, 2001) [hereinafter Initial EAJA Order]. The appellant then filed

a timely motion for a panel decision, to which the Secretary, as required by Court order, responded,

and the appellant filed a reply. The Court will grant the appellant's motion for a panel decision,

withdraw the December 17, 2001, single-judge order, issue this opinion in lieu of that order, and,

for the reasons that follow, deny the appellant's EAJA application.

I. Relevant Background

On March 27, 2000, the appellant, during the pendency of the merits portion of this case,

filed his brief, in which he stated, inter alia: "The parties hereto have already agreed that the portion

of the BVA decision here on appeal regarding [a]ppellant's claim for his left-shoulder disability

should be vacated and remanded for readjudication. Accordingly, that issue will not be addressed

further herein." Appellant's Brief (Br.) at 7-8. On September 28, 2000, the Secretary filed a motion

to remand in part and summarily affirm in part the BVA decision. Therein, the Secretary argued for

remand of the appellant's shoulder claim on the grounds that the Board had failed to consider, under

Fenderson v. West, 12 Vet.App. 119 (1999), whether a staged rating was appropriate and to discuss

the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5203 (concerning malunion or nonunion).

Secretary's Sept. 2000 Motion (Mot.) at 4-5. As to the other claims involved in the Board decision,

the Secretary argued for affirmance. Id. at 6-10.

On October 12, 2000, the appellant filed his reply brief, arguing, inter alia, that "[t]he

Secretary does not dispute the first point [, i.e., that the Board failed to provide an adequate statement

of reasons or bases in connection with the shoulder claim], and both parties are seeking a remand

of the shoulder claim." Reply Br. at 1. The Court, on December 21, 2000, issued a single-judge

order that acknowledged that "[t]he parties agree that the shoulder claim should be remanded", but

then ordered the Secretary to show cause "why the Board decision should not be vacated in its

entirety and the matters remanded" for "the Board to determine, in the first instance, whether the

[Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)

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(VCAA),] is applicable to this claim." Briddell v. Gober, U.S. Vet. App. No. 99-1198, slip op. at

1-2 (Dec. 21, 2000).

In a January 22, 2001, response, the Secretary "move[d] the Court to vacate and remand the

BVA decision of March 18, 1999[,] to the Board for readjudication in accordance with the provisions

of the VCAA." Secretary's Jan. 22, 2001, Response (Resp.) at 4. The Secretary also acknowledged

that "[c]ounsel for appellant does agree that remand is necessary in this case." Ibid. In the February

21, 2001, single-judge order, the Court granted "the Secretary's unopposed motion to vacate" the

Board decision, and vacated the Board decision and remanded the matters. Remand Order at *1.

The full text of the remand order is as follows:

Before the Court is the March 18, 1999, decision of the Board of Veterans'

Appeals (Board) that denied entitlement to increased ratings for post-operative

residuals of a left shoulder injury (shoulder claim) and chronic low back pain (back

claim), and to initial compensable ratings for chondromalacia of the right and left

patellas (knee claims). For the reasons that follow, the Court will vacate the Board

decision and remand the matter for readjudication.

The appellant filed a brief on March 27, 2000, stating that the parties had

agreed to a remand of the shoulder claim and arguing for a remand of the back and

knee claims. On September 28, 2000, the Secretary filed a motion in lieu of a brief

urging the Court to remand the shoulder claim but to affirm the Board's decision in

all other respects. On December 21, 2000, the Court ordered the Secretary to show

cause why, in light of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.

No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), the Board decision should not be

vacated in its entirety and the matters remanded for readjudication. In response, on

January 22, 2001, citing the VCAA, the Secretary filed an unopposed motion to

vacate the Board decision and remand all claims.

On consideration of the foregoing, it is

ORDERED that the Secretary's unopposed motion to vacate is granted. It

is further

ORDERED that the March 18, 1999, decision of the Board is VACATED and

the matter is REMANDED for readjudication.

Id. at 1-2 (emphasis added).

In the appellant's EAJA application, he argues that he is a prevailing party on the basis of

having secured a remand, and alleges that the position of the Secretary was not substantially justified.

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Application (Appl.) at 2-4. In the Secretary's July 16, 2001, response to the appellant's application,

the Secretary argues that the appellant is not a prevailing party, and that the position of the Secretary

was substantially justified at both the administrative and litigation stages. Secretary's EAJA Resp.

at 3-4. As to the initial concession of a remand of the shoulder claim, the Secretary states: "The

Court is not bound by the parties' agreement that a partial remand was necessary, and could have

concluded that remand was not appropriate despite the parties' urging." Id. at 14. In his October 19,

2001, reply, the appellant reiterates his contentions that he is a prevailing party and that the position

of the Secretary at the administrative level was not substantially justified. Appellant's EAJA Reply

at 1. Specifically, he contends that he is a prevailing party under the "inevitable victory" theory, and

notes: "In this regard, [the a]ppellant points to the Secretary's admission in his brief that the Board

decision herein was erroneous with respect to one claim and that the decision with respect to that

claim should be vacated and remanded." Id. at 2-3.

In the Court's December 2001 order denying the EAJA application, the Court concluded:

"The remand ordered in this matter was predicated upon the change in law brought about by the

enactment of the VCAA and not upon any finding by the Court of administrative error." Initial

EAJA Order at *1. The Court concluded that, pursuant to Sumner v. Principi, 15 Vet.App. 256, 264

(2001) (en banc), and Vaughn v. Principi, 15 Vet.App. 277, 280 (2001) (per curiam order), such a

remand could not confer prevailing-party status. Ibid.

The appellant then timely filed a motion for a panel decision. Therein, the appellant asserts

that he is a prevailing party pursuant to Sumner, supra, because of the acknowledgment of error in

the Secretary's September 2000 motion. Mot. for Panel Decision at 2. On February 4, 2002, a panel

of the Court issued an order instructing the Secretary to respond to the appellant's motion for a panel

decision and allowing the appellant to file a reply to the Secretary's response. Briddell v. Principi,

15 Vet.App. 413, 413 (2002) (per curiam order). A concurring statement invited the parties to

address the implications, if any, of Jacobsen v. West, 12 Vet.App. 546, 546-48 (1999), for the

prevailing-party analysis. Ibid. (Steinberg, J., concurring).

In a March 27, 2002, response, the Secretary argues that the remand order in this case was

"based on the VCAA alone" and, therefore, under Sumner, the appellant was not a prevailing party.

March 2002 Resp. at 4. As to Jacobsen, the Secretary states that that case "has no direct bearing on

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the case at bar" because the issue in contention in Jacobsen was substantial justification, whereas

the principal issue in contention in the instant case is prevailing-party status. Id. at 5. Finally, the

Secretary notes: "Applying the Jacobsen rationale to a determination of prevailing-party status

would lead to an impermissible result. Basing prevailing-party status on any prior admission by the

Secretary is essentially granting prevailing-party status using the now-defunct inevitable-victory

test." Id. at 6. In a May 13, 2002, reply, the appellant again argues that prevailing-party status can

be achieved under Sumner when there is a remand and the Secretary has acknowledged error even

though the Court did not act on that acknowledgment, as was the case here. May 2002 Reply at 1-2.

He argues further that Jacobsen supports his position in this case: "[A]bsent the need for a remand

for application of the VCAA, the appellant would have been entitled to a remand predicated upon

the Board's error as conceded by the Secretary's brief. The Secretary conceded error. That

concession alone should be sufficient to confer prevailing[-]party status on [the] appellant." Id. at

4. The Court has voted unanimously to grant the motion for a panel decision and will withdraw the

December 17, 2000, single-judge order and issue this opinion in its stead.

II. Analysis

A. Jurisdiction

The appellant's June 12, 2001, EAJA application was filed within the 30-day EAJA

application period set forth in 28 U.S.C. § 2412(d)(1)(B). In order to satisfy any EAJA jurisdictional

content requirements that apply, an application must contain the following: (1) A showing that, by

virtue of the Court's remand, he is a prevailing party within the meaning of the EAJA; (2) a showing

that he is a party eligible for an award under the EAJA because his net worth does not exceed

$2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and

(4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Cullens v. Gober,

14 Vet.App. 234, 237 (2001) (en banc). The appellant's EAJA application was timely filed and

satisfies any EAJA jurisdictional content requirements. See ibid.

B. Prevailing Party

In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See

28 U.S.C. § 2412(d)(1)(A) ("court shall award to a prevailing party . . . fees and other expenses");

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Sumner, 15 Vet.App. at 260-61. The applicant has the burden of demonstrating prevailing-party

status under the EAJA. Id. at 261. In the Sumner case, this Court held, in a unanimous en banc

opinion, that in order to attain EAJA prevailing-party status, there must be either a direction by the

Court for VA to award VA benefits or a remand by this Court that is "predicated upon administrative

error". Id. at 265 (emphasis added). Sumner concluded that a remand is predicated on administrative

error if "in his motion . . . [,] the Secretary acknowledge[s] error" or if, "in remanding the matter",

the Court "recognize[s] administrative error". Ibid. Sumner went on to hold that prevailing-party

status had not been achieved there because there was no merits disposition (let alone a direction to

award benefits) and the remand ordered was not predicated on administrative error because, as

explained in Cycholl v. Principi, "neither one of the criteria for finding such a remand were met –

that is, 'nowhere in his motion did the Secretary acknowledge error, and because, alternatively, in

remanding the matter the Court did not recognize administrative error.'" Cycholl, 15 Vet.App. 355,

357 (2001) (quoting Sumner, 15 Vet.App. at 264). In Vaughn, a case dealing with legislation (the

VCAA) enacted subsequent to the Board decision there under review, the Court found that the

appellant was not a prevailing party due to a remand based solely on the newly enacted legislation.

Vaughn, 15 Vet.App. at 279-80. The Court further stated there: "Given that the sole basis for the

remand was the enactment of the VCAA and that the Board's disposition of this case had occurred

before the enactment of the VCAA, there could not have been any Board error with respect to the

VCAA." Id. at 279 (latter emphasis added).

1. Prevailing-Party under Sumner. Applying the criteria set forth in Sumner to determine

the question of prevailing-party status, there has been no direction to award benefits here, so the

inquiry is whether there was a remand "predicated upon administrative error". A remand may be

predicated upon administrative error if (1) the Court recognizes administrative error in remanding

the case, or (2) if, in the words of Sumner, "in his motion . . . [,] the Secretary acknowledge[s] error".

Ibid. A review of the remand order in this case reveals that the Court clearly did not recognize any

error. Therefore, in order for the appellant to be a prevailing party under Sumner, the Secretary must

have acknowledged error "in his motion".

Because there were two Secretarial motions for remand here, the Court must determine what

is meant by "in his motion". The language of Sumner in this regard is: "The appellant's claim was

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remanded as requested in the Secretary's unopposed motion for remand. Because nowhere in his

motion did the Secretary acknowledge error, . . . the remand was not predicated upon administrative

error." Ibid. In Sumner, there was only one motion for remand. Id. at 257. It would be incongruous

to believe that the Court was referring to any motion there other than the motion that the Court

granted and that thus directly prompted the remand.

There is not the slightest hint in Sumner or in any other opinion of this Court that prevailing-

party status should be determined based on something other than what the Court actually did on the

merits, or, certainly, that it should be determined based on something that it decided not to do.

Indeed, why else would the Court in Sumner have established the test as "a court remand predicated

upon administrative error"? Id. at 264. The word "predicated" requires a connection, or a nexus, to

use a familiar term in our veterans law lexicon, between "remand" and "error". As Webster's New

World Dictionary puts it, "to predicate" means "to affirm or base (something) on or upon given facts,

arguments, conditions, etc." WEBSTER 'S NEW WORLD DICTIONARY 1062 (3d Coll. ed. 1988). The

Court in Sumner looked beyond its own words – the words it used in its disposition of the merits –

only to account for the situation, which is a very common one in this Court, where the Court grants,

without further comment, a joint, an uncontested, or even a contested motion and must look to the

words of the motion in order to determine the nature and scope of the Court's action.

In contrast to the foregoing logical and contextual reading of Sumner, the appellant's reading,

which is accepted by the dissenting opinion, would tear from their context the words referring to the

Secretary's acknowledgment of "administrative error". Interpreting words in a judicial opinion in

this respect is very much like interpreting words in a statutory provision. For the latter purpose, it

is a major precept that "each part or section should be construed in connection with every other part

or section so as to produce a harmonious whole[; t]hus, it is not proper to confine interpretation to

the one section to be construed." NORMAN J. SINGER , SUTHERLAND ON STATUTORY CONSTRUCTION

§ 46:05 (6th ed. 2000); see Talley v. Derwinski, 2 Vet.App. 282, 286 (1992) (quoting, in part,

SINGER , supra). The reading adopted by the appellant and the dissent, although perhaps somewhat

literal in a myopic way, is both illogical and unprecedented and confounds common sense.

Moreover, to the extent that the argument could be made that the Court could, in the instant EAJA

deliberation, make a finding on the joint position taken by the parties at the merits stage but not then

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adopted by the Court, and thus create an ex post facto "judicial imprimatur" for purposes of the

EAJA, such an argument clearly runs afoul of the landmark U.S. Supreme Court case of Buckhannon

Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598

(2001), which was the basis for our Sumner opinion. The Supreme Court in Buckhannon required

a judicial imprimatur "on the change" in the legal relationship of the parties. Buckhannon, 502 U.S.

at 604. A finding now that the Secretary's September 2000 motion should have been granted does

not alter the legal relationship of the parties, because "the change" contemplated by Buckhannon,

supra, would have had to occur at the time of the underlying Court action (in this case, the remand

order) that is the basis for the fee application that was filed. The dissenting opinion completely

ignores this Buckhannon "judicial imprimatur" requirement, Buckhannon, supra; see post at 14

(stating requirements of prevailing-party determination in this case to be that Secretary had

"acknowledged error" and had "agreed to a remand of the appellant's shoulder claim" but failing to

mention or discuss in this context judicial-imprimatur requirement). It would furthermore be, to say

the least, a highly anomalous result for the Court to defer consideration of these issues on the merits,

but then take them on at the EAJA stage, when such a Court decision could well end up being made

so late in the process that the Board had already made its decision on remand. See Mahl v. Principi,

15 Vet.App. 37, 43 (2001) (Steinberg, J., dissenting) ("[o]therwise, we would be confronted with the

anomaly that the Board might not be bound in readjudicating the case by decisions made as to the

merits of the BVA's prior decision (but not as part of the Court's review of the BVA decision) long

after the case has been remanded to the Board by the Court and perhaps even after some adjudication

on remand had already taken place"); see also Flemming v. Principi, 16 Vet.App. 52, 55 (2002)

(Steinberg, J., concurring in part and dissenting in part); Cullens, 14 Vet.App. at 249 (Kramer, C.J.,

concurring).

In light of our conclusion that there must be an explicit connection between the asserted

administrative error and the Court's remand, the appellant could be said to be a prevailing party

under Sumner only if the Court's February 2001 remand order can fairly be read as having granted,

in whole or in part, the Secretary's September 2000 motion confessing error as to the shoulder claim.

However, a reading of that remand order illustrates that the Court was granting only one remand

motion: The Secretary's January 22, 2001, VCAA-remand motion. In the first "ORDERED"

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paragraph, that order stated that "the Secretary's unopposed motion to vacate is granted." If there is

any ambiguity about what "unopposed motion" meant, it is quickly resolved by examining the way

the order described the two motions here at issue. Ibid. The Secretary's September 2000 motion is

described, inter alia, as "a motion in lieu of a brief urging the Court to remand the shoulder claim".

The VCAA-remand motion, on the other hand, is described as "an unopposed motion to vacate the

Board decision and remand all claims". Both the subject of the first "ORDERED" paragraph and

the VCAA-remand motion are described as being an "unopposed motion" of the Secretary. Although

a portion of the September 2000 motion was unopposed, only the VCAA-remand motion is referred

to in the remand order as an "unopposed" motion. In order to find that the Secretary's September

2000 motion was actually granted by the remand order, we would have to find either that (1) despite

the similarity in terminology between the VCAA-remand motion and the "ORDERED" paragraph,

that paragraph actually referred to the September 2000 motion (because this putative view would

state that that motion was the motion that was granted, and because the order grants the Secretary's

motion in full, any such reading of the February 2001 order would create a conflict between that

motion's request for partial affirmance of the Board decision and the wholesale vacatur of the Board

decision ordered by the Court); or that (2) despite the use of the singular noun "motion" in the

"ORDERED" paragraph and despite the lack of detail given in describing the "motion" granted, the

order actually was granting both the VCAA-remand motion and one portion of the September 2000

motion. Either reading would entail stretching the actual language of the remand order well beyond

any reasonable or logical reading, and the Court is unwilling to engage in such an approach.

For the above reasons, therefore, the Court cannot accept the appellant's argument, as adopted

by our dissenting colleague, based on fractured language extracted from the context of the Court's

opinion in Sumner, that the appellant is a prevailing party.

2. Extension of Jacobsen. The appellant also argues that the holding of Jacobsen, supra

– that, absent a remand for readjudication pursuant to newly issued caselaw, "the appellant would

have been entitled to a remand predicated on the Board's error as conceded by the Secretary's brief",

and that, therefore, substantial justification for the Secretary's position on the conceded error would

be examined – should be extended to the determination of prevailing-party status in this case.

Specifically, the appellant quotes in part the following passage from Jacobsen:

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Accordingly, it is apparent that, absent the necessity for a remand for

application of Hodge[v. West, 155 F.3d 1356, 1362 (Fed.Cir. 1998) (holding invalid,

as beyond requirements of 38 C.F.R. § 3.156(a) (1998), test enunciated in Colvin v.

Derwinski, 1 Vet.App. 171, 174 (1991), for determining materiality of newly

presented evidence)], the appellant would have been entitled to a remand predicated

on the Board's error as conceded by the Secretary's brief. Thus, the Court concludes

that, under the unique circumstances here presented, as to two of the claims the

Secretary was not substantially justified, and the appellant is entitled to an award of

EAJA fees. See Jackson v. West, [12 Vet.App. 422, 429 (1999)]; Elcyzyn v. Brown,

7 Vet.App. 170, 175 (1994) ("only one determination of lack of substantial

justification with respect to the entire matter need be made").

Jacobsen, 12 Vet.App. at 548. In Jacobsen, a concurring opinion stated:

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.

Ibid. (Kramer, J., concurring); see also Jacobsen v. West, 13 Vet.App. 35, 36-40 (1999) (en banc per

curiam order) (Steinberg, J., dissenting) (arguing that Jacobsen, by looking beyond actual remand

order to speculate on potential outcome of case absent intervening change, violated prior Court

precedent).

We find convincing the Secretary's argument that extension of Jacobsen to a prevailing-party

determination would be to adopt an "inevitable victory" analysis, which the Court has already

rejected in Vaughn, 15 Vet.App. at 280. March 2002 Resp. at 6. In Vaughn, this Court stated as

follows concerning the inevitable-victory test:

Finally, the appellant argues that she has obtained prevailing-party status

under the inevitable-victory test. The inevitable-victory test has been raised to the

Court, but we have never accepted it. See, e.g., Lematta v. Brown, 8 Vet.App. 504,

510 (1996) (citing Perket v. Sec['] y of Health & Human Services, 905 F.2d 129, 132

(6th Cir. 1990), and holding that test inapplicable where there had been no

superseding legislation); Chandler v. Gober, 11 Vet.App. 6, 8 (1997) (holding that

test was not applicable where "victory has neither been attained nor assured"),

overruled in part by Miley v. Principi, 242 F.3d 1050, 1054 (Fed. Cir. 2001). Where

a court has remanded a case at the merits stage based solely on a statutory change, the

inevitable-victory test would allow for prevailing-party status where the appellant

later, at the EAJA stage, could prove that he would have prevailed at the merits stage

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absent that statutory change. See Perket, 905 F.2d at 133; see also Milton v. Shalala,

17 F.3d 812, 815 (5th Cir. 1994); Guglietti v. Sec[']y of Health & Human Services,

900 F.2d 397, 402 (1st Cir. 1990). However, under Buckhannon, [532 U.S. at 604-

05], and Sumner, [15] Vet.App. at [264-65], that test can no longer be viable because

it lacks the critical requirement that a remand at the merits stage be predicated on

administrative error. Accordingly, we hold that the inevitable-victory test, just as the

catalyst test, is not a permissible basis for establishing prevailing-party status under

the EAJA. See Buckhannon, [supra,] Sumner, [supra,] and Thayer[ v. Principi,

15 Vet.App. 204, 211 (2001)].

Vaughn, supra.

Under the inevitable-victory test, some courts, before Buckhannon, supra, had recognized

that an appellant could establish prevailing-party status by showing that he would have prevailed

absent an intervening event such as the enactment of a statute (for example, the VCAA). The

extension of the Jacobsen substantial-justification approach into the prevailing-party-status context

would permit an appellant to establish that he was a prevailing party where he could show that,

absent the necessity for a remand for application of an intervening change in caselaw (in Jacobsen,

the opinion of the U.S. Court of Appeals for the Federal Circuit in Hodge, supra), the appellant

would have been entitled to a remand predicated on the Board's error as conceded by the Secretary's

pleading. The only difference between the two standards would be that, under the Jacobsen

approach, there would be a requirement that the Board error be conceded, at some point, by the

Secretary. However, such a concession would affect only the degree of persuasiveness with which

the appellant could assert that he would have prevailed; it doesn't alter the fact that both theories rely

on a 'but for' test, i.e., 'but for the remand on other grounds, I would have prevailed'. In that

sense, the two theories are virtually the same, and, accordingly, transferring a Jacobsen-type

approach into the context of determining prevailing-party status would run afoul of Vaughn's

rejection of the inevitable-victory test and, of course, of the necessity for a remand "predicated" on

– that is, expressly linked to or associated with – administrative error, as described in Sumner and

Vaughn, both supra, and as set forth in part II.B.1., above. Therefore, the Court also rejects the

appellant's invitation to extend the Jacobsen rationale to prevailing-party inquiries.

For all the above reasons, the appellant has failed to demonstrate that he is a prevailing party.

See Sumner, 15 Vet.App. at 261. Because the appellant is not a prevailing party, no further inquiry

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is necessary. See id. at 261, 265 (examining only prevailing-party issue and, after finding no

prevailing-party status, denying EAJA application).

III. Conclusion

Upon consideration of the foregoing analysis, the appellant's December 20, 2001, motion for

a panel decision is granted. The Court's December 17, 2001, single-judge order is withdrawn, and

this opinion is issued in its stead. The appellant's EAJA application is denied.

APPLICATION DENIED.

GREENE, Judge, concurring: I concur in the holding of the majority opinion and write

separately only to note that I would have reached that conclusion by a more direct route.

Two cases are dispositive of this matter: Buckhannon Board and Care Home, Inc. v. West

Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), and Sumner v.

Principi, 15 Vet.App. 256, 264 (2001) (en banc). In Buckhannon, the Supreme Court eliminated the

catalyst theory as a basis for achieving prevailing party status, and in doing so, revisited its prevailing

party jurisprudence. Buckhannon, 532 U.S. at 600-10. Following Buckhannon, this Court decided

Sumner, in part to "reexamine our jurisprudence with regard to attaining prevailing-party status

pursuant to the success-on-the-merits theory under the EAJA and to clarify our caselaw." Sumner,

15 Vet.App. at 261. In the underlying appeal in Sumner, the Court had granted the Secretary's

unopposed motion to remand the matter, based on the Board Chairman's inclination to grant

reconsideration. Id. at 257. The Sumner Court reviewed the EAJA statute and numerous cases

interpreting it, and stated: "Supreme Court cases awarding prevailing-party status either require the

ultimate receipt of the benefit that was sought in bringing the litigation, i.e., the award of a benefit,

or, at a minimum, a court remand predicated upon administrative error." Id. at 264. The Court went

on to state, with regard to the facts of that particular case, "Because nowhere in his motion did the

Secretary acknowledge error, and because, alternatively, in remanding the matter, the Court did not

recognize administrative error, the remand was not predicated upon administrative error." Id. at 265.

Stated another way, Sumner holds that in order to qualify as a prevailing party for EAJA, a

party must receive either (A) the award of a benefit sought, or (B) a court remand predicated upon

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administrative error. Defining what would constitute a (B)-type remand, the Court included

situations where there was a motion by the Secretary acknowledging error ((B)(1)), or a Court

remand recognizing administrative error ((B)(2)). Both (B)(1) and (B)(2) must be the equivalent of

a (B)-type "court remand predicated upon administrative error," since neither (B)(1) nor (B)(2) is an

(A)-type "award of the benefit sought." Therefore, only an acknowledgment of error by the Secretary

that is accepted by the Court would constitute a "court remand predicated upon administrative error"

that may confer prevailing-party status to a litigant. To hold otherwise, and to permit any concession

of error by the Secretary to confer prevailing-party status upon an appellant, whether the Court

accepts such concession or not, would remove the necessary judicial imprimatur required by

Buckhannon. See Buckhannon, 532 U.S. at 605 ("A defendant's voluntary change in conduct,

although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the

necessary judicial imprimatur on the change."). Although I would confess that the language "and

because, alternatively" of Sumner is inartful, I cannot accept the dissent's conclusion that the plain

language of Sumner somehow eliminates Buckhannon's judicial imprimatur requirement.

In Vaughn v. Principi, the Court held that the appellant was precluded from achieving

prevailing-party status, "based on obtaining a remand solely for readjudication in light of the

enactment of the VCAA." 15 Vet.App. 277, 280 (2001). Here, the Court's one dispositive order

specifically grants the Secretary's unopposed motion to remand in light of the enactment of the

VCAA. There is no "court remand predicated upon administrative error," so as to confer prevailing-

party status upon the appellant. Although Mr. Briddell may be frustrated with this resolution, in light

of the fact that his counsel worked diligently for a remand for reasons other than the VCAA, and

because the Secretary conceded error in his brief to the Court, this matter must be decided not on

emotion but on the basis of the law.

FARLEY, Judge, dissenting: As a single judge, I originally found that the appellant was not

a prevailing party and denied his application for fees under EAJA. The appellant filed a timely

motion for panel decision pursuant to Rule 35 of the Court's Rules of Practice and Procedure. In his

motion, the appellant argued as follows:

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In Sumner v. Principi, 15 Vet.App. 256, 264 (2001) [(en banc)], this Court

held that "a remand does not constitute 'some relief on the merits' unless that remand

is predicated upon administrative error," and found that "[b]ecause nowhere in his

motion did the Secretary acknowledge error, and because, alternatively, in remanding

the matter, the Court did not recognize administrative error, the remand was not

predicated upon administrative error." From this language, it is apparent that a

remand is predicated upon administrative error in two scenarios: either the Secretary

acknowledges error in his pleadings or the Court finds error. Appellant asserts that

in the instant case, he is a prevailing party because the Secretary acknowledged

administrative error in his pleadings.

Mot. for Panel Decision at 2. What was apparent to the appellant belatedly became apparent to me.

In its December 21, 2000, order, the Court took specific note of the fact that "[t]he parties

agree that the shoulder claim should be remanded. The appellant argues that the remaining claims

should also be remanded . . . ." Due to the then-newly enacted VCAA, the Court directed the

Secretary to show cause why "the Board decision should not be vacated in its entirety and the matters

remanded." Nothing in the December 2000 order vitiated the Secretary's concession and the

agreement of the parties with regard to the shoulder claim.

Similarly, in the February 21, 2001, order that granted the Secretary's ensuing motion to

vacate the Board's decision as to all claims, the Court again noted that the Secretary had conceded

error and agreed to a remand of the shoulder claim:

The appellant filed a brief on March 27, 2000, stating that the parties had

agreed to a remand of the shoulder claim and arguing for a remand of the back and

knee claims. On September 28, 2000, the Secretary filed a motion in lieu of a brief

urging the Court to remand the shoulder claim but to affirm the Board's decision in

all other respects.

Remand Order at *1.

Under the circumstances presented by this case, where the Secretary had indeed

acknowledged error and agreed to a remand of the appellant's shoulder claim, the appellant is correct

that the plain language of Sumner compels the conclusion that the appellant was a prevailing party

with regard to that claim. Finding that all other elements of an EAJA claim were satisfied, I would

grant the application and award attorney fees commensurate with the efforts expended on that claim.

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In order to deny the application, the majority interprets–actually, rewrites–Sumner to hold

that "the appellant could be said to be a prevailing party under Sumner only if the Court's February

2001 order can fairly be read as having granted, in whole or in part, the Secretary's September 2000

motion confessing error as to the shoulder claim." Ante, at 8. The majority's labored and

unwarranted attempt to complicate the simplicity of the holding of Sumner is unpersuasive and I

cannot join in its "only if" conclusion; nor can I support Judge Greene's mere dismissal of Chief

Judge Kramer's language for the en banc Court in Sumner as "inartful." Ante, at 13. I do not believe

that the Court could or should disregard the concession of error by the Secretary and the agreement

of the parties in the record of this case and therefore I respectfully dissent.

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