Jones v. Brown, s. 94-7054

• Citation: 41 F.3d 634
• Decision Date: 29 November 1994
• Docket Number: 94-7057,Nos. 94-7054,s. 94-7054
• Parties: McArthur JONES, Claimant-Appellant, and Martin M. Karnas, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 634

41 F.3d 634

63 USLW 2365

McArthur JONES, Claimant-Appellant, and Martin M. Karnas, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

Nos. 94-7054, 94-7057.

United States Court of Appeals,

Federal Circuit.

Nov. 29, 1994.

Brian Wolfman, Atty., Public Citizen Litigation Group, of Washington, DC, argued for claimant-appellant, Martin M. Karnas. With him on the brief were Alan M. Morrison, Ruth Eisenberg and Barton F. Stichman. Also on the brief was William G. Smith, Atty., of Los Angeles, CA.

Michael E. Robinson, Atty., U.S. Dept. of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Frank W. Hunger, Asst. Atty. Gen. and William Kanter. Of counsel was Paul J. Hutter, Atty., U.S. Dept. of Veterans Affairs, of Washington, DC.

Before NEWMAN, MAYER, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

McArthur Jones and Martin M. Karnas appeal from a decision of the United States Court of Veterans Appeals dismissing their consolidated motions for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. Jones v. Brown, 6 Vet.App. 101 (1993). Because the Federal Courts Administration Act of 1992 (FCAA) authorized the Court of Veterans Appeals to award costs and fees under the EAJA in all cases and appeals pending on the date of its enactment, we vacate and remand.

BACKGROUND

Section 506 of the FCAA, enacted on October 29, 1992, authorizes the United States Court of Veterans Appeals to award costs and fees under the EAJA. Pub.L. No. 102-572, Sec. 506, 106 Stat. 4506, 4513 (1992). The FCAA was made applicable to any future appeal brought to the Court of Veterans Appeals as well as "any case pending" in the Court of Veterans Appeals and "any appeal ... pending" from that court in the Federal Circuit on the date of its enactment. Id. This appeal presents the question whether In 1991, prior to the enactment of the FCAA, the Court of Veterans Appeals decided the merits of the underlying veteran benefits claims in separate appeals filed by Jones and Karnas. Jones v. Derwinski, 1 Vet.App. 210 (1991) (vacating and remanding to the Board of Veterans' Appeals); Karnas v. Derwinski, 1 Vet.App. 308 (1991) (reversing and remanding to the Board of Veterans' Appeals). Following these decisions, Jones and Karnas each filed applications under the EAJA for, respectively, a bill of costs under 28 U.S.C. Sec. 2412(a) and (b), and an award of attorney fees and expenses under 28 U.S.C. Sec. 2412(d).

the FCAA applies to a case or appeal pending on the date of the FCAA's enactment when the case or appeal only concerns an EAJA application for legal services performed in an action decided earlier on the merits, before the date of enactment.

At the time Jones and Karnas filed their EAJA applications, the relevant portions of Sec. 2412, which allow parties in litigation with the United States to recover costs and fees in certain circumstances, provided:

Sec. 2412. Costs and fees

(a) Except as otherwise specifically provided by statute, a judgment for costs ... may be awarded to the prevailing party in any civil action brought by or against the United States ... in any court having jurisdiction of such action.

(b) ... a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States ... in any court having jurisdiction of such action.

* * * * * *

(d)(1)(A) ... a court shall award to a prevailing party other than the United States fees and other expenses, ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

* * * * * *

(d)(2)(F) "court" includes the United States [Court of Federal Claims];

28 U.S.C. Sec. 2412 (1988). ¹ See generally Gavette v. Office of Personnel Management, 808 F.2d 1456, 1459 (Fed.Cir.1986) (discussing the EAJA). Jones's and Karnas's applications were consolidated by the Court of Veterans Appeals. See Jones v. Derwinski, 2 Vet.App. 7 (1991) (order).

En banc, the Court of Veterans Appeals held that the EAJA did not apply to its proceedings because the statute did not contain an unambiguous waiver of sovereign immunity with respect to that court. Jones v. Derwinski, 2 Vet.App. 231 (1992). The court noted that, while Congress had specifically provided for the application of the EAJA to litigation in the Court of Federal Claims, the Tax Court, and the Social Security Administration, Congress had not done so with respect to the Court of Veterans Appeals. Id. at 233. Accordingly, the court dismissed Jones's bill of costs and denied Karnas's motion for attorney fees. Id. at 235. Karnas appealed to this court. Jones filed a motion for attorney fees under Sec. 2412(b) and (d) with the Court of Veterans Appeals, which motion was stayed pending the outcome of Karnas's appeal.

During the pendency of Karnas's appeal, the FCAA was enacted, amending 28 U.S.C. Sec. 2412(d)(2)(F) to include the Court of Veterans Appeals as one of the courts authorized to award costs and fees under the EAJA. Section 506 of the FCAA provides:

SEC. 506. COSTS AND FEES IN THE UNITED STATES COURT OF VETERANS APPEALS.

(a) IN GENERAL.--Section 2412(d)(2)(F) of title 28, United States Code, is amended by inserting before the semicolon "and the United States Court of Veterans Appeals".

(b) APPLICATION TO PENDING CASES.--The amendment made by subsection (a) shall apply to any case pending before the United States Court of Veterans Appeals on [October 29, 1992], to any appeal filed in that court on or after such date, and to any appeal from that court that is pending on such date in the United States Court of Appeals for the Federal Circuit.

Pub.L. No. 102-572, Sec. 506, 106 Stat. 4506, 4513 (1992) (emphasis supplied). The Senate Judiciary Committee, in its report concerning the FCAA on July 27, 1992, stated:

A March 13, 1992 decision of the United States Court of Veterans Appeals (court), in Jones and Karnas v. Derwinski, denied the right of plaintiffs to recover attorneys fees under the Equal Access to Justice Act (EAJA). This ruling has resulted in a substantial burden on veterans bringing cases to court, aggravating the situation in which a majority of cases are being brought pro se, thereby creating additional work for the court.

The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjustified Government action. Veterans are exactly the type of individuals the statute was intended to help. Therefore, section 508 [enacted as section 506] amends EAJA to clarify that it applies to the Court of Veterans Appeals, overruling the Jones and Karnas decision.

The committee intends to make clear that EAJA applies to the court to the full extent of the law, including the principles contained in Sullivan v. Hudson, [490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941] (1989) (the EAJA must be read in light of its purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action,) and Center for Science in the Public Interest v. Regan [, 802 F.2d 518 (D.C.Cir.1986) (case pending only on the question of fees at the time of a previous amendment to the EAJA was a "case pending" within the meaning of the statute) ].

S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992) (footnotes omitted); see also H.R.Rep. No. 102-1006, 102d Cong., 2d Sess. 25 (1992), U.S.Code Cong. & Admin.News 1992, 3921, 3934.

Both Karnas and the Secretary filed a joint motion with this court to vacate and remand Karnas's appeal, asserting that "both parties agree that the [FCAA amendment] effectively overrules the decision of the [Court of Veterans Appeals] in this case and warrants a remand to that court to determine whether [Karnas] is otherwise eligible for an award of attorney's fees and expenses under the EAJA, 28 U.S.C. Sec. 2412(d)." ² Accordingly, this court granted the motion and vacated the Court of Veterans Appeals decision. Jones v. Principi, 985 F.2d 582 (Fed.Cir.1992).

On remand, the Court of Veterans Appeals concluded that for purposes of the FCAA and the EAJA, the term "case pending" includes only "cases pending before the Court on the merits on or after October 29, 1992; it does not include cases in which the only matters pending before the Court are EAJA applications." Jones, 6 Vet.App. at 107. The court thus dismissed Jones's and Karnas's applications because their underlying actions were not pending on the merits on October 29, 1992. Id. Jones and Karnas now appeal. ³

DISCUSSION

In reviewing decisions of the Court of Veterans Appeals, this court is authorized to "decide all relevant questions of law [and to interpret] statutory provisions." 38 U.S.C. Sec. 7292 (1988). We accord de novo consideration to such questions. See Weddel v. Secretary of the Dep't of Health & Human Servs., 23 F.3d 388, 391 (Fed.Cir.1994). When interpreting a statute, we first examine its language. Martel v. Department of Transp., Federal Aviation Admin., 735 F.2d 504, 507 n. 6 (Fed.Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984).

Section 506(a) of the FCAA amended the EAJA to add the Court of Veterans Appeals to the definition of "courts" authorized to award EAJA costs and fees. FCAA Sec. 506(a). Section 506(b) makes the amendment applicable to "any case pending before the United States Court of Veterans Appeals on [October 29, 1992], to any appeal filed in that court on or after such date, and to any appeal from that court that is pending on such date in the United States Court of Appeals for the Federal Circuit." Id. Sec. 506(b) (emphasis supplied). It is uncontested that Jones's EAJA...