Dorothy Rollins v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 00-1731 (E)

DOROTHY ROLLINS, APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Application for Attorney Fees and Expenses

(Decided September 25, 2003 )

Daniel G. Krasnegor and Christopher A. Glaser, both of Washington, D.C., were on the

pleadings for the appellant.

Tim S. McClain, General Counsel; Ron Garvin, Assistant General Counsel; Mary Ann Flynn,

Deputy Assistant General Counsel; and John D. McNamee, all of Washington, D.C., were on the

pleadings for the appellee.

Before IVERS, STEINBERG, and GREENE, Judges.

STEINBERG, Judge: The appellant, through counsel, previously appealed an August 2,

2000, Board of Veterans' Appeals (BVA or Board) decision that had (1) denied her claims for a

rating greater than 10% for each of her Department of Veterans Affairs (VA) service-connected

disabilities (tendonitis of the right and left ankles), and (2) remanded her claim for VA service

connection for Parkinson's disease. Prior to briefing, the parties submitted a joint motion for

remand; the Court, by order of the Clerk of the Court, granted that joint motion on May 9, 2001.

Rollins v. Principi, No. 00-1731 (U.S. Vet. App. May 9, 2001) (unpublished order) (Rollins I).

Currently pending before the Court are the appellant's applications, timely filed through counsel, for

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

Secretary has filed a response in opposition to the application, and the appellant has filed a reply

thereto and a supplemental EAJA application. Additionally, the appellant and the Secretary have

each filed a supplemental memorandum of law in response to a December 5, 2002, Court order. For

the reasons that follow, the Court will deny the EAJA applications.

I. Relevant Background

On May 3, 2001, the parties, referring to the need for readjudication in light of the enactment

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

(VCAA), and this Court's opinions in Holliday v. Principi, 14 Vet.App. 280 (2001), and Karnas v.

Derwinski, 1 Vet.App. 308, 313 (1991), filed a joint motion to vacate the August 2000 BVA decision

and to remand the matter for readjudication. The joint motion provided:

The BVA's decision in the instant case was made on the basis

of chapter 51's previous requirements as to providing notice and

obtaining evidence. Remand for readjudication in light of the VCAA

is required.

....

Because the criteria for providing notice, developing evidence

and deciding benefits claims have been fundamentally altered, any

purported or perceived errors in the appealed BVA decision will be

mooted by the provisions of the VCAA or can be properly raised and

remedied on remand. It would be premature for the Court to address

them.

Joint Motion (Mot.) at 2-3 (citations omitted). The joint motion also stated as follows:

The parties agree that on remand and readjudication, the BVA will

address the applicability of 38 C.F.R. § 3.321 [(2000)] and [38 C.F.R.

§ 4.71a,] Diagnostic Code [(DC)] 5262. The Board should also

address the significance of language in a May 25, 1999,

[compensation and pension (C&P)] examination report from the West

Palm Beach [VA Medical Center] by Dr. Guerzon: "[The appellant]

has not worked since then" (Record on Appeal at 242). Finally, [the

a]ppellant will be afforded a new examination.

Id. at 3. As to the preceding instructions, the motion stated: "The parties agree that these

instructions to the BVA do not constitute a confession of error by the Secretary in the Board

decision." Id. at 3 n.1. The joint motion further stated: "In any subsequent decision, the Board

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must set forth adequate reasons or bases for its findings and conclusions on all material issues of fact

and law presented on the record. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinksi, 1 Vet.App. 49

(1990)." Id. at 4 (emphasis added).

The Clerk of the Court granted this motion on May 9, 2001, pursuant to his authority under

Rule 45(g)(2) of the Court's Rules of Practice and Procedure to act on unopposed motions to

"remand a case"; that order stated in full:

The parties, noting that remand is required due to the

enactment of the [VCAA], have filed a joint motion to remand this

appeal to the [BVA]. It is

ORDERED that the motion is granted and that part of the

BVA's decision that denied[] (1) an increased evaluation in excess of

10% for tend[o]nitis of the right ankle; and (2) an increased

evaluation in excess of 10% for tend[o]nitis of the left ankle is

vacated. The matter is remanded pursuant to 38 U.S.C. § 7252(a).

Under Rule 41(b) of the Court's Rules of Practice and Procedure, this

order is the mandate of the Court.

Any application authorized by 28 U.S.C. § 2412 for attorney

fees and expenses must be received within 30 days after the date of

this order.

Rollins I, supra.

On June 8, 2001, the appellant filed an EAJA application seeking $6,716.41 in attorney fees

and expenses. The appellant asserts that she is a prevailing party under either the "inevitable-

victory" theory or the "catalyst" theory. Application (Appl.) at 4-11. She further asserts that, despite

the parties' agreement in the joint motion that "the instructions to the BVA did not constitute a

confession of error by the Secretary," the Secretary's position at the administrative level was not

substantially justified because the Board decision failed to address 38 C.F.R. § 3.321 and DC 5262,

and because VA failed to afford the veteran a thorough and contemporaneous examination. Appl.

at 4, 11-15. In his response, the Secretary argues that the appellant is not a prevailing party, and,

alternatively, that the position of the Secretary at the administrative and litigation levels was

substantially justified. Response (Resp.) at 4-16. In her reply, the appellant asserts that the Secretary

did not meet his burden of demonstrating that his actions were substantially justified. Reply at 3-6.

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The appellant also submitted a supplement to her original EAJA application; she seeks an additional

$587.46 in attorney fees and expenses for the time spent to prepare the reply brief. Reply at 7-10.

On December 5, 2002, the Court issued an order directing the parties to file supplemental

memoranda addressing the impact on the present matter of the Court's opinions in McCormick v.

Principi, 16 Vet.App. 407 (2002), Briddell v. Principi, 16 Vet.App. 267 (2002), Vaughn v. Principi,

15 Vet.App. 277, 280 (2001) (per curiam order) [hereinafter Vaughn I], aff'd, 336 F.3d 1351 (Fed.

Cir. 2003) [hereinafter Vaughn II], and Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc), aff'd

sub nom. Vaughn II, supra, as well as any other pertinent precedent. Rollins v. Principi,

No. 00-1731, 2002 WL 31749082, at *1 (U.S. Vet. App. Dec. 5, 2002) (unpublished order). In her

supplemental memorandum of law, the appellant asserts that she is a prevailing party under Sumner

and McCormick, both supra, because the Court's remand was a substantive determination in her

favor. Memorandum (Mem.) at 2-3. She states: "[The a]ppellant's remand was, in part, in light of

this Court's recognition of the Board's error in failing to address the issues raised in the [j]oint

[m]otion[,] and the remand was, therefore, 'predicated upon administrative error.'" Mem. at 3. The

Secretary counters that the appellant does not meet the Sumner prevailing-party standard because the

joint motion was based solely on the post-BVA-decision enactment of the VCAA and Holliday and

Karnas, both supra, and, thus, did not contain "any confession of error" as to the BVA decision.

Mem. at 2-3. He further argues that the Court did not make a finding of administrative error

because it "did not entertain any presumptive or perceived error in the Board decision." Mem. at 4.

II. Analysis

A. Jurisdiction

This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to

28 U.S.C. § 2412(d)(2)(F). The appellant's June 8, 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 applicable

EAJA jurisdictional content requirements, an application must, and the instant application did,

contain the following: (1) A showing that, by virtue of the Court's remand, the applicant is a

prevailing party within the meaning of the EAJA; (2) a showing that the applicant is a party eligible

for an award under the EAJA because the applicant's net worth does not exceed $2,000,000; (3) an

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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); Scarborough v. Principi, 319 F.3d 1346,

1349 (Fed. Cir. 2003); Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1998); Briddell,

16 Vet.App. at 271; Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc).

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");

Briddell, supra; Sumner, 15 Vet.App. at 260-6l; Cullens, 14 Vet.App. at 237. The appellant has the

burden of demonstrating prevailing-party status under the EAJA. See Sumner, Briddell, and Cullens,

all supra. Prevailing-party status arises in either of two ways. The first is through a direction of the

Court, evident within the terms of the particular Court decision upon which the appellant is basing

the EAJA application, for VA to award VA benefits to the appellant. Sumner, 15 Vet.App. at 264-

65. The second is through the grant of a merits-stage Court remand that was predicated upon

administrative error. Ibid. In order for a remand to have been predicated upon administrative error,

the remand must either (1) have been directed in a Court opinion, decision, or order that contained

a Court recognition of administrative error or (2) have been granted on the basis of a concession of

error by the Secretary. McCormick, 16 Vet.App. at 411; Briddell, 16 Vet.App. at 271-72. The Court

will not "investigate at the EAJA prevailing-party stage the validity, type, or nature of the

administrative error." McCormick, 16 Vet.App. at 411.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently affirmed

in a consolidated opinion our en banc opinion in Sumner, supra, and our opinion in Vaughn I, supra.

See Vaughn II, 336 F.3d at 1356-57, 1360. On that same day, the Federal Circuit issued an opinion

that examined whether an appellant was a prevailing party under the EAJA and held:

[W]here the plaintiff secures a remand requiring further

[administrative] agency proceedings because of alleged error by the

agency, the plaintiff qualifies as a prevailing party (1) without

regard to the outcome of the agency proceedings where there has

been no retention of jurisdiction by the court, or (2) when successful

in the remand proceedings where there has been a retention of

jurisdiction.

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Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir.

2003) (emphasis added). The Federal Circuit, however, took care to harmonize that holding with

its holding in Vaughn II:

This holding is compatible with that of Former Employees of

Motorola Ceramic Products v. United States, No. 02-1223, also

issued today. Although that holding was not unanimous, as explained

therein, the facts of these cases are readily distinguishable at the point

at which their holdings diverge. Thus, for both Vaughn and Sumner,

their request for attorney fees is an intermediate event that did not

involve a merit determination, in Vaughn's case a change in law and

in Sumner's case the discovery of new evidence. In both cases, the

government agreed to a remand to the Board, and the remands have

not resulted in a decision on the merits of their claims. In neither case

did the Veterans' Court suggest that these new events might change

the result; the Vaughn and Sumner requests for attorney fees are

founded solely on the remand for further proceedings without a

determination of error.

Vaughn II, 336 F.3d at 1360 (emphasis added).

In this case, there was no direction by the Court to award VA benefits; thus, the Court must

determine whether there was a Court remand predicated upon administrative error. As a preliminary

matter, it is clear in this case that there was a Court remand.

Next, the Court must determine whether there was a Court recognition of administrative error

or whether the Secretary conceded error at the merits stage. See Sumner, McCormick, and Briddell,

all supra. The appellant asserts that the Court made a substantive determination in her favor, and,

consequently, that there was a Court recognition of administrative error. Mem. at 1-3. The Secretary

contends that the remand order did not contain a Court recognition of administrative error because

it was based solely on the enactment of the VCAA and this Court's opinions in Holliday and Karnas,

both supra, and that the Court thus did not "entertain" any arguments. Mem. at 3-6.

This case is controlled, in part, by the analysis in the Court's opinion in Vaughn I. In

Vaughn I, the appellant's claim was remanded in accordance with Karnas, supra, solely in light of

the VCAA's enactment subsequent to the Board decision on appeal, and the Court found that that

remand based solely on the enactment of the VCAA did not bestow prevailing-party status on the

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

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basis for the remand was the enactment of the VCAA and that the Board's disposition of the 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; accord Briddell, 16 Vet.App. at 273-74.

In this case, the August 2000 BVA decision was issued before the enactment of the VCAA,

and the Court's May 9, 2001, order stated expressly that the remand proposed in the joint motion was

based upon that enactment. Rollins I, supra. Thus, Vaughn I is dispositive as to the VCAA-remand

ground. Unlike in Vaughn I, however, the parties' joint motion here contains additional language

whereby the parties agreed that, if the Court were to grant the motion and order a remand, on remand

the Board (1) "will" address the applicability of 38 C.F.R. § 3.321 and DC 5262, (2) "will" afford

to the appellant a new examination, and (3) "must" set forth an adequate statement of reasons or

bases for its findings and conclusions on each material issue of fact and law. Joint Mot. at 3. The

parties also agreed that the Board should "address the significance of language in a May 25, 1999,

C&P examination report." Ibid.

Although the Court has not yet addressed whether the grant of a joint-remand motion that

contains remand instructions such as those quoted above constitutes a Court recognition of

administrative error, this case does not permit the Court to reach such an issue. Upon examination

of the language of the Court's Rollins I order, it is apparent that the order did not incorporate the

terms of the parties' joint motion, but, rather, remanded the matter based only on the enactment of

the VCAA. Hence, under these circumstances we need not look at the language in the joint motion

in order to determine whether the Court recognized administrative error; on the face of the Rollins I

Court order, there was no reference to any administrative error.

In order to determine whether the Secretary conceded error in the joint motion, we do need

to turn to the language of that motion. The remand instructions in the joint motion recite an

agreement by the parties regarding the conduct of the remand proceedings; they contain no language

that expressly, or by necessary implication, recognizes Board error. Indeed, as part of the joint

motion, the parties expressly proclaim that "it would be premature for the Court to address" any

"purported or perceived errors in the appealed BVA decision." Joint Mot. at 3. Moreover, the joint

motion expressly states that the Secretary did not concede error: "The parties agree that these

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instructions to the BVA do not constitute a confession of error by the Secretary in the Board

decision." Joint Mot. at 3 n.1.

Because the Court's May 2001 Rollins I order was based solely on the enactment of the

VCAA and in light of the above analysis, the Court holds that there was no Court recognition of

administrative error in the May 2001 Court order. See Sumner, McCormick, and Vaughn I, all supra;

Briddell, 16 Vet.App. at 271-72; see also Vaughn II, 336 F.3d at 1356-57, 1360. Likewise, the Court

holds that the Secretary did not concede administrative error in the joint motion granted by that

order. See Sumner, Briddell, and McCormick, all supra; see also Vaughn II, supra. Accordingly,

because the Court has determined that the appellant is not a prevailing party, no further inquiry is

necessary. See Briddell, 16 Vet.App. at 275 (citing Sumner, 15 Vet.App. at 261, 265).

Finally, as to the appellant's reliance on the "inevitable-victory" theory or the "catalyst" theory

as bases for establishing prevailing-party status under the EAJA, both of these theories have been

rejected by the Court in light of the Supreme Court's opinion in Buckhannon Board and Care Home,

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

Vaughn I, supra (rejecting "inevitable-victory" theory); Thayer v. Principi, 15 Vet.App. 204, 211

(2002) (rejecting "catalyst" theory), appeal dismissed per stipulation, No. 02-7012, 2002 WL

2004692 (Fed. Cir. Aug. 20, 2002) (dismissing appeal upon appellant's motion in light of Brickwood

Contractors, Inc. v. United States, 288 F.3d 1371 (Fed. Cir. 2002) (holding that "catalyst theory"

does not support award for attorney fees under EAJA)).

III. Conclusion

Upon consideration of the foregoing analysis, the appellant's June 8, 2001, EAJA application

and August 6, 2001, supplemental EAJA application are denied.

APPLICATIONS DENIED.

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