Davis v. Nicholson
Decision Date | 05 February 2007 |
Docket Number | No. 2006-7053.,2006-7053. |
Citation | 475 F.3d 1360 |
Parties | Alice DAVIS (as surviving spouse of Phillip Davis, deceased), Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. |
Court | U.S. Court of Appeals — Federal Circuit |
Sandra E. Booth, of Columbus, Ohio, argued for claimant-appellant.
Marla T. Conneely, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Donald E. Kinner, Assistant Director. Of counsel on the brief was Michael J. Timinski, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC. Of counsel was Martin J. Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
Phillip Davis appeals from the judgment of the United States Court of Appeals for Veterans Claims ("Veterans Court") denying his application for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Davis v. Nicholson, 20 Vet.App. 235 (Vet.App.2005) ("EAJA Decision"). For the reasons discussed below, we affirm.
Davis, a World War II veteran, filed a claim for Total Disability based upon Individual Unemployability ("TDIU") with the Regional Office ("RO") on December 2, 1992. The RO denied this claim, and Davis appealed this denial to the Board of Veterans' Appeals ("Board"). After a remand to the RO in 1998 for additional development, the Board denied Davis' TDIU claim on October 13, 2000, finding that Davis' service-connected disabilities did not preclude him from gainful employment under 38 C.F.R. § 4.16(a).1 Davis thereafter appealed the Board's decision to the Veterans Court, arguing as one error the Board's failure to follow 38 C.F.R. § 4.15, which requires, inter alia, that full consideration be given to "unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability." Davis argued that instead of considering § 4.15, the Board limited its TDIU determination to 38 C.F.R. § 4.16.
The Veterans Court disagreed and, in a 2002 decision affirming the Board's denial of Davis' TDIU claim, concluded that § 4.15 was not before the Veterans Court on appeal. Davis v. Principi,2 18 Vet.App. 151, 2002 WL 32515089 (Vet.App. Aug. 27, 2002). Davis appealed the Veterans Court decision to this court. Holding that the "Veterans Court erred when it suggested that the individualization requirements of section 4.15 were independent of the TDIU criteria set forth in section 4.16 and refused to consider section 4.15 as an issue not before the court," we vacated the decision and remanded on February 3, 2004. Davis v. Principi, 88 Fed.Appx. 397, 400 (Fed.Cir.2004) (non precedential). We expressed no opinion on whether the Board had in fact considered the particular circumstances of Davis' disabilities under § 4.15. Id.
At the Veterans Court, Davis filed a motion for remand to the Board for readjudication of his claim on the ground that the Board had failed to apply or discuss § 4.15. On April 20, 2004, the Veterans Court denied Davis' motion for remand but vacated the Board's October 13, 2000 decision and remanded the case to the Board for fact finding. Davis v. Principi, No. 01-0122, 18 Vet.App. 536, 2004 WL 2600221 (Vet.App. Apr. 20, 2004) ("Remand Order"). The pertinent part of the Remand Order states
Because the application of § 4.15 requires a determination of fact, the matter must be remanded to the Board for further action. See 38 U.S.C. § 7261(c); Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000). On remand the appellant is free to submit additional evidence and argument necessary to the resolution of his claim. See Kutscherousky v. West, 12 Vet.App. [sic] 369 (1999) (per curiam order).
Upon consideration of the foregoing, it is
Ordered that appellant's unopposed motion to expedite is granted. Appellant's motion for remand is denied. The Secretary's motion to strike appellant's motion for remand and motion for a stay of proceedings are denied as moot.
Remand Order at 2. The Veterans Court did not retain jurisdiction over the remand. Davis eventually received TDIU benefits in 2004.
On the basis of the Remand Order, Davis filed at the Veterans Court an application seeking $27,903.29 in attorney's fees and expenses under the Equal Access to Justice Act, which provides in relevant part:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), 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.
28 U.S.C. § 2412(d)(1)(A). On November 1, 2005, the Veterans Court denied the EAJA application on the ground that Davis was not a "prevailing party" under the EAJA because there had been no finding of administrative error by this court or the Veterans Court in the underlying benefits case. EAJA Decision at *4. "Rather, the [Veterans] Court remanded the matter for a determination of fact." Id. at *3-4. This appeal followed. Davis died shortly after filing the instant appeal. On October 17, 2006, this court granted an unopposed motion to substitute Davis' surviving widow Alice Davis as the appellant. We have jurisdiction pursuant to 38 U.S.C. § 7292.
The question of whether Davis is a "prevailing party" under the EAJA is a question of law that we review de novo. Vaughn v. Principi, 336 F.3d 1351, 1354 (Fed.Cir.2003) (internal citation omitted). The EAJA is a fee-shifting statute that allows a party who prevails in a civil action brought by or against the government to recover attorney's fees and costs. 28 U.S.C. § 2412(d)(1)(A). A party prevails in a civil action if he receives "`at least some relief on the merits of his claim.'" Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603-604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (quoting Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). In Buckhannon, the Supreme Court provides a spectrum for distinguishing prevailing parties from parties not entitled to an award of attorney's fees, albeit in the Fair Housing Amendments Act context. Id. at 604, 121 S.Ct. 1835. At one end of the spectrum, enforceable judgments on the merits, even for nominal damages, and court-ordered consent decrees confer prevailing party status. Id. They do so because they effect a "`material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." Id. (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866, (1989)). At the other end of the spectrum, interlocutory rulings that reverse dismissals for a failure to state a claim, reversals of directed verdicts for defendants, and achievement of desired results because a lawsuit brought about a voluntary change in the defendant's conduct (i.e., the catalyst theory) do no confer prevailing party status. Id. at 605, 121 S.Ct. 1835.
We have applied the definition of "prevailing party" in Buckhannon to EAJA cases. Brickwood Contrs., Inc. v. United States, 288 F.3d 1371, 1379 (Fed.Cir.2002). Because remands do not necessarily provide any relief on the merits, we have developed tests based on Supreme Court cases for determining when court-to-administrative agency remands confer prevailing party status. See Former Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed.Cir.2003). For example, we held that
where the plaintiff secures a remand requiring further 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.
Id. In cases such as the instant appeal where the court below has not retained jurisdiction, we have developed an approach for determining when a remand to an administrative agency occurs "because of alleged error by the agency." Id. On the one hand, remands for the consideration of new evidence discovered for the first time during appeal, Vaughn v. Principi, 336 F.3d 1351, 1354, 1360 (Fed.Cir. 2003), and remands to consider the effects of intervening new law, Akers v. Nicholson, 409 F.3d 1356, 1360 (Fed.Cir.2005); Vaughn, 336 F.3d at 1353, 1360,3 do not qualify plaintiffs as prevailing parties. On the other hand, remands based on our recognition of agency error from the record do confer prevailing party status. Kelly v. Nicholson, 463 F.3d 1349, 1354 n. 3 (Fed.Cir.2006). The same result follows if the Veterans Court finds administrative error or if the Secretary concedes it.
Here, the parties agree that the remand at issue is the remand by the Veterans Court to the Board in the underlying merits case. In the Remand Order, the Veterans Court did not retain jurisdiction but did order further action by the Board. Therefore, under Motorola, we are not concerned about the ultimate outcome of the agency proceedings on the underlying merits case. 336 F.3d at 1366. Instead, our focus is on whether agency...
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