Gurley v. Peake

Decision Date09 June 2008
Docket NumberNo. 2007-7148.,2007-7148.
Citation528 F.3d 1322
PartiesRandolph S. GURLEY, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

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

Phyllis Jo Baunach, 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 Jeanne E. Davidson, Director, and Bryant G. Snee, Deputy Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, DYK and MOORE, Circuit Judges.

DYK, Circuit Judge.

Randolph S. Gurley ("Gurley") appeals a final decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") denying his application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Gurley v. Nicholson, 20 Vet.App. 573 (2007). Because we agree with the Veterans Court that Gurley is not a "prevailing party" under EAJA, we affirm.

BACKGROUND

Gurley served in the Army from 1972 to 1974. In 1980, Gurley applied to the Regional Office of the Department of Veterans Affairs ("VA") located in Columbia, South Carolina, for a disability rating based on the residuals of left knee synovitis. The VA initially issued Gurley a non-compensable rating for his knee injury. However, in 1989, Gurley applied for and was awarded a disability rating increase to 10%. In February 1994, Gurley again sought an increased disability rating for his knee injury based on additional evidence, but this time was denied any increase. Over the next ten years, the VA three times denied Gurley's claim for a disability rating increase. Gurley three times appealed to the Board of Veterans' Appeals ("Board"), and the Board three times remanded to the VA for further consideration.

On June 25, 2004, the Board issued a decision increasing Gurley's 10% disability rating for his left knee disability to 20%, while at the same time rejecting Gurley's contention that he was entitled to a higher disability rating. The Board concluded that Gurley had met "the criteria for a 20 percent disability rating [for the knee injury], but no more." J.A. at 32. In the same opinion, the Board addressed additional issues directed to Gurley's claim for increased compensation that were separate from, but related to, the claim for an increased disability rating. First, Gurley claimed entitlement to service connection for a psychiatric disorder. This claim was that a psychiatric disability, incurred during a period of hospitalization in 1997, was proximately due to or was the result of Gurley's left knee disability, and therefore entitled Gurley to increased compensation. Gurley also made a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disability ("TDIU"). That is, he claimed that his left knee disability left him unable to work or to find gainful employment, and that he was entitled to compensation based on his demonstrated unemployability. The Board declined to reach the merits of either of the latter two claims and remanded both to the VA.

Gurley timely appealed the Board's decision on the left knee disability claim to the Veterans Court. In his opening brief, Gurley argued that the Board should not have separately addressed the greater than 20% rating question as to the knee injury, but instead should have remanded that claim with the other two remanded claims. The latter claims, Gurley argued, were "inextricably intertwined" with the knee injury claim, since "[a] grant of a total rating based upon individual unemployability would have a `significant impact' on his claim for an increased rating for his left knee disability." J.A. at 26. Gurley did not cite any authority suggesting that the Board was obligated to consider such claims simultaneously. Rather, Gurley relied on several Veterans Court decisions that had either dismissed appeals for lack of jurisdiction (when the appealed claim was intertwined with other claims pending before the VA) or remanded such claims to the Board so that the claims could be considered simultaneously. The leading case was Harris v. Derwinski, where the Veterans Court dismissed the appellant's appeal for lack of jurisdiction. 1 Vet.App. 180, 183 (1991). In Harris, the Board had denied a claim for "an increased rating for anxiety neurosis with depressive features," but remanded a separate claim for "compensation for a service-connected heart disorder." Id. at 181. The Veterans Court determined that because the two claims were "so closely tied" to each other, the Board's decision was not a final decision. Id. at 183.

On October 5, 2005, before the government filed its brief, the parties filed a joint motion for remand, requesting that the Veterans Court vacate that portion of its judgment limiting the knee injury disability rating to 20% and remanding the claim to the VA to be heard with the other two claims. The joint motion stated in relevant part:

The parties agree that remand is warranted to comply with the Court's holding in Harris v. Derwinski, 1 Vet.App. 180 (1991). Where the facts underlying separate claims are "intimately connected", the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together. Smith v. Gober, 236 F.3d 1370, 1373 (Fed.Cir.2001). The Court has held that where a decision on one issue would have a "significant impact" upon another, and that impact in turn "could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources," the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

J.A. at 16 (alteration in original).

In an order dated October 13, 2005, the Veterans Court granted the parties' joint motion for remand, which it incorporated by reference. The court vacated the portion of the Board's judgment limiting the knee injury rating and remanded the claim to the VA. The Veterans Court did not retain jurisdiction.

After the remand order issued, Gurley timely filed an EAJA application with the Veterans Court seeking an award of attorneys' fees, costs, and expenses in the total amount of $6,429.72. Gurley maintained that the Board's position, denying him a disability rating of more than 20% rather than remanding the issue, was not "substantially justified" because the Board remanded two claims that were intimately connected with the increased knee injury rating claim. The VA filed an opposition to Gurley's application, arguing that Gurley was not a "prevailing party" under EAJA because his remand was not predicated on agency error. The Veterans Court agreed.

The Veterans Court held that Gurley was not a prevailing party under EAJA, because his remand was not predicated on administrative error. Instead, the court found that the remand "was warranted for compliance with Harris, for the specifically stated purposes of `judicial economy and avoidance of piecemeal litigation.'" J.A. at 5. Harris, the court explained, involved a claim that the Veterans Court was without jurisdiction to hear on appeal, but the case also "involved concepts of judicial economy." Id. The court found that, in this case, and in contrast to Harris, it did have jurisdiction over Gurley's claim. That left "consideration of judicial economy as the sole basis for the [joint motion to remand]." Id. Under these circumstances, the Veterans Court concluded that a remand to comply with Harris, absent any jurisdictional problem, could not have been predicated on administrative error.

Gurley timely appealed. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

On review of a decision of the Veterans Court, this court "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1); Halpern v. Principi, 384 F.3d 1297, 1300 (Fed.Cir. 2004). 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). We therefore review without deference the Veterans Court's interpretation of EAJA. Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed.Cir.2007). The question of whether Gurley is a prevailing party in this context is a legal question which we review de novo. Id.

I.

EAJA provides in relevant part:

[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) (emphases added).

Prevailing party status requires "some relief on the merits." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Supreme Court has been clear that remands by the courts of appeals to district courts for further proceedings do not constitute relief on the merits or confer prevailing party status on the successful party. See Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987); Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (holding that a remand to the district court does not confer prevailing party status on the appellant...

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