Halpern v. Principi

Decision Date27 September 2004
Docket NumberNo. 04-7010.,04-7010.
Citation384 F.3d 1297
PartiesElie HALPERN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Appeal from the Court of Appeals for Veterans Claims.

COPYRIGHT MATERIAL OMITTED

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Kyle E. Chadwick, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before LOURIE, LINN, and PROST Circuit Judges.

LINN, Circuit Judge.

Elie Halpern ("Halpern") appeals from the judgment of the United States Court of Appeals for Veterans Claims ("Veterans' Court") dismissing his application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (2000). Halpern v. Principi, 17 Vet.App. 225 (2003) ("Halpern V"). Although the Veterans' Court applied the wrong legal standard, as a matter of law we conclude that Halpern is not a prevailing party under the appropriate legal standard. Thus, we affirm the decision of the Veterans' Court denying Halpern's EAJA application.

I. BACKGROUND

Halpern, an attorney, represented Dennis Gibson ("Gibson"), a veteran, who sought a decision on service connection for a recurrent ankle injury. Halpern signed a contingency fee representation agreement with Gibson in March 1998. Pursuant to the agreement, Halpern sought past-due compensation from the Department of Veterans Affairs ("DVA") on Gibson's behalf in exchange for, inter alia, twenty percent of any recovery. In April 1999, Gibson was awarded past-due compensation, and the DVA withheld twenty percent of the award for payment to Halpern pursuant to the agreement and pursuant to 38 U.S.C. § 5904(d). The DVA then transferred Gibson's file to the Board of Veterans' Appeals ("Board") for a determination as to Halpern's eligibility to receive the withheld portion of the award under 38 U.S.C. § 5904.

On June 30, 1999, the Board decided that Halpern was not entitled to the withheld portion of the award because the fee agreement did not meet the requirements of 38 U.S.C. § 5904(d)(1) and 38 C.F.R. § 20.609(h). In re Fee Agreement of Eli Halpern, No. 99-09 480 (Bd.Vet.App. June 30, 1999) ("Halpern I"). Halpern appealed to the Veterans' Court. While the appeal was pending, the Veterans' Court decided Scates v. Gober, 14 Vet.App. 62 (2000) (en banc), aff'd as modified sub nom. Scates v. Principi, 282 F.3d 1362 (Fed.Cir.2002). In Scates, the Veterans' Court held that the Board lacked original jurisdiction to evaluate an attorney's eligibility for payment of a withheld portion of past-due compensation. Based on Scates, Halpern moved that the Veterans' Court vacate the Board's decision. The Secretary of Veterans Affairs ("Government") did not oppose Halpern's motion, and in September 2000, the Veterans' Court granted the motion to vacate the Board's decision for want of original jurisdiction and remanded the case to the Board with directions to dismiss. Halpern v. Gober, 17 Vet.App. 403 (2000) (unpublished decision) ("Halpern II").

In October 2000, Halpern filed an EAJA application for an award of attorney's fees and expenses in connection with his appeal to the Veterans' Court. In February 2001, the Veterans' Court requested additional briefing addressing, inter alia, whether a party that receives a remand is a prevailing party for EAJA purposes. On February 8, 2002, the Veterans' Court dismissed Halpern's appeal, holding that because it did not have original jurisdiction over Halpern's claim for attorney's fees under the direct-payment contingency fee agreement, it lacked jurisdiction over Halpern's EAJA claim as well. Halpern v. Principi, 15 Vet.App. 416, 418-19 (2002) ("Halpern III"). Halpern appealed to this court. We reversed the decision of the Veterans' Court that it did not have jurisdiction and remanded for consideration of Halpern's EAJA application. Halpern v. Principi, 313 F.3d 1364 (Fed.Cir.2002) ("Halpern IV").

On remand, the Veterans' Court denied Halpern's EAJA application. Halpern V, 17 Vet.App. at 228. The Veterans' Court concluded that Halpern received a remand solely because of a change in the law while the appeal was pending. Id. Based on that conclusion and the Veterans' Court's prior decisions in Flemming v. Principi, 16 Vet.App. 52 (2002), and Sachs v. Principi, 15 Vet.App. 414 (2002), the Veterans' Court held that Halpern was not a prevailing party under EAJA and that Halpern's application must be denied. Id.

Halpern appeals from the decision of the Veterans' Court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

II. DISCUSSION
A. Standard of Review

The scope of this court's review of a decision of the Veterans' Court is governed by 38 U.S.C. § 7292(d). In accordance with the statute, this court "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1) (2000). This court reviews an interpretation of EAJA by the Veterans' Court de novo. Jones v. Brown, 41 F.3d 634, 637 (Fed.Cir.1994). However, we "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2).

B. Analysis
1. Law of the Case

The Government argues that we are barred by law of the case from considering whether Halpern is a prevailing party within the meaning of EAJA. Before we can consider the merits of Halpern's argument with respect to whether he is a prevailing party under EAJA, we must first consider whether the Government is correct that we are barred by law of the case from considering this issue. The Government quotes from Halpern IV, where we stated:

Although our review of [the prevailing party] issue is de novo, the ultimate conclusion of whether a party prevailed in an action is one of law based on findings of fact, notably whether the party has "receive[d] at least some relief on the merits of his claim." Our jurisdiction over appeals from the Veterans' Court is narrowly defined, and we are precluded from reviewing the application of law to fact. Under these circumstances, it is beyond the scope of our jurisdiction to address the question of whether Halpern is a "prevailing party" within the meaning of EAJA.

313 F.3d at 1369 (citations omitted). The Government argues that in declining to decide the prevailing party issue, we adopted Halpern's argument that we did not have jurisdiction to review prevailing party determinations of the Veterans' Court. Thus, according to the Government, we are bound to abide by this rule under the law of the case doctrine.

Under the law of the case doctrine, "a court will generally refuse to reopen or reconsider what has already been decided at an earlier stage of the litigation." Suel v. Sec'y of Health & Human Servs., 192 F.3d 981, 985 (Fed.Cir.1999). However, "[t]he law of the case doctrine is not applicable to issues neither presented nor decided in a former proceeding in the case." Stearns v. Beckman Instruments, Inc., 737 F.2d 1565, 1568 (Fed.Cir.1984). The law of the case doctrine, then, does not apply in this case because the issue presented in the present appeal is not the same as that presented in the previous appeal. In the previous appeal, the Government requested that we hold in the first instance that Halpern was not a prevailing party. We refused the Government's invitation and instead, remanded the case for the Veterans' Court to decide that issue. Halpern IV, 313 F.3d at 1369. The Veterans' Court has now made that determination, and the case returns to us in a different posture. In our previous decision, we did not hold that we are powerless to review decisions of the Veterans' Court on prevailing party issues. Rather, we simply said, "Under these circumstances, it is beyond the scope of our jurisdiction to address the question of whether Halpern is a `prevailing party' within the meaning of EAJA." Id. Now that the question has been decided in the first instance by the Veterans' Court, we have jurisdiction over and are required by statute to review all relevant questions of law. See Vaughn v. Principi, 336 F.3d 1351, 1356-57 (Fed.Cir.2003) (affirming judgments denying prevailing party status because the Veterans' Court "applied the correct legal standard").

The Government also argues that Halpern should be precluded from relying on an argument in the present appeal that is contrary to his position in the previous appeal under the doctrine of judicial estoppel. The Government's argument is misplaced because Halpern is not relying upon a contradictory argument. The argument that a determination in the first instance of prevailing party status in a particular case may require application of law to fact is different from an argument as to the correct legal standard applicable in such cases.

2. Prevailing Party

The Veterans' Court concluded that Halpern was not a prevailing party under its "rule of retroactive application" as applied in both Flemming v. Principi, 16 Vet.App. 52 (2002), and Sachs v. Principi, 15 Vet.App. 414 (2002). Halpern V, 17 Vet.App. at 228. Specifically, the Veterans' Court held that the "sole basis for the remand was due to the change in case law in Scates, which was issued during the pendency of the appeal." Id. Halpern disputes the Veterans' Court's application of its rule of retroactive application in this case. He argues that the Veterans' Court's interpretation of the statute in Scates simply...

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