Vaughn v. Principi

• Decision Date: 24 July 2003
• Docket Number: No. 02-7169.,No. 02-7019.,02-7019.,02-7169.
• Citation: 336 F.3d 1351
• Parties: Syble M. VAUGHN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. W.T. Sumner, Claimant-Appellant, v. Anthony J. Principi, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

336 F.3d 1351

Syble M. VAUGHN, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

W.T. Sumner, Claimant-Appellant, v. Anthony J. Principi, Secretary of Veterans Affairs, Respondent-Appellee.

No. 02-7019.

No. 02-7169.

United States Court of Appeals, Federal Circuit.

July 24, 2003.

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

Christian J. Moran, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Robert D. McCallum, Jr., Associate Attorney General; David M. Cohen, Director; Todd M. Hughes, Franklin E. White, Jr., Assistant Directors; and Kyle Chadwick, Attorney. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and Martin Sendek, Attorney, Department of Veterans Affairs, of Washington, DC.

Allison M. Zieve, Public Citizen Litigation Group, of Washington, DC, argued for amici curiae National Veterans Legal Services Program, et al. With her on the brief was Brian Wolfman. Also on the brief were Barton F. Stichman and Louis J. George, National Veterans Legal Services Program, of Washington, DC, for National Veterans Legal Services Program.

Barbara J. Cook, of Cincinnati, OH, for amicus curiae National Organization of Veterans Advocates in 02-7019.

Frank E. Howard, of Oakland, CA, for amicus curiae Donald B. Gold.

Before NEWMAN, RADER, and GAJARSA, Circuit Judges.

RADER, Circuit Judge.

Syble Vaughn and W.T. Sumner (collectively, appellants) separately appeal the United States Court of Appeals for Veterans' Claims (Veterans' Court) denial of their applications for award of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (2000). The Veterans' Court denied their applications on the ground that neither was a "prevailing party." Vaughn v. Principi, 15 Vet.App. 277 (2001); Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc). Because the Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), and this court's decision in Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed.Cir.2002), preclude Vaughn and Sumner from attaining "prevailing party" status under EAJA, this court affirms both decisions.

I.

After the death of her husband in 1995, Vaughn applied for various veteran survivor benefits. Finding no service connection to the cause of death, the Board of Veteran's Appeals (BVA) denied her claims. Vaughn appealed the denial to the Veterans' Court. While her appeal was pending, Congress enacted the Veteran's Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096 (2000). Citing the need for re-adjudication in light of the VCAA, the parties filed a joint motion for remand on the issue of service connection to the cause of death and dismissal of the remaining issues. After the Veterans' Court consented to the remand request, Vaughn filed an EAJA application for attorney fees. The EAJA provides, in part, that:

[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, 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) (2000) (emphasis added). The Secretary of Veterans Affairs (VA Secretary) opposed Vaughns EAJA application on the grounds that her assertion of prevailing party status was premised on, inter alia, the catalyst theory.

After Vaughns EAJA application, the Supreme Court issued its decision in Buckhannon. Buckhannon addressed the issue of whether a party is entitled to attorney fees as a "prevailing party" under the catalyst theory. According to the catalyst theory, a prevailing party is one that "achieve[s] the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Buckhannon, 532 U.S. at 601, 121 S.Ct. 1835. Buckhannon held that "the `catalyst theory' is not a permissible basis for the award of attorney fees under the FHAA [Fair Housing and Amendments Act of 1988], 42 U.S.C. § 3613(c)(2), and the ADA [Americans with Disabilities Act], 42 U.S.C. § 12205." Id. at 610, 121 S.Ct. 1835.

Because Buckhannon did not explicitly address the catalyst theory as a basis for awarding attorney fees under EAJA, the Veterans' Court requested supplemental briefs from Vaughn and the VA Secretary. After considering the supplemental briefs, the Veterans' Court denied Vaughn's EAJA application. The Veterans' Court reasoned that Buckhannon precluded Vaughn from achieving prevailing party status "under the merits, catalyst, or inevitable-victory tests based on obtaining a remand solely for re-adjudication in light of the enactment of the VCAA." Vaughn, 15 Vet.App. at 280.

II.

The Veterans' Court similarly denied Sumner's EAJA application. After the BVA denied his claim for veteran's benefits, Sumner appealed to the Veterans' Court. While his appeal was pending, Sumner submitted a motion with the BVA to reconsider his claim based on newly acquired material evidence. He also filed a motion with Veterans' Court to stay his appeal pending the BVA's decision on his motion for reconsideration. The Veterans' Court granted the stay and ordered the VA Secretary to advise the court on whether the BVA was inclined to grant the motion for reconsideration and, if so, to file a motion for a "Cerullo remand." See Cerullo v. Derwinski, 1 Vet.App. 195 (1991). After advising the appeals court that it was inclined to grant reconsideration, the BVA granted Sumner's motion for reconsideration, stayed the order pending remand from the Veterans' Court, and filed an unopposed motion for remand in accordance with the prior order. After the Veterans' Court remanded, Sumner filed an EAJA application for award of attorney fees. Sumner argued that he was a "prevailing party" under the merits or catalyst theory. In an en banc decision, the Veterans' Court denied his application, holding that Buckhannon precluded Sumner from attaining "prevailing party" status under the merits or catalyst theory. According to the en banc decision, Buckhannon and Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), together hold that granting of prevailing party status requires "ultimate receipt of a benefit that was sought in bringing the litigation... or, at a minimum, a court remand predicated on administrative error." Sumner, 15 Vet.App. at 264.

Vaughn and Sumner appealed separately to this court. Because the two cases present similar facts and concern the same legal issue, this court addresses both Vaughn's and Sumner's appeals with this opinion.

III.

These two cases require this court to determine whether the Veterans' Court applied the proper legal standard in determining whether appellants are "prevailing parties" under EAJA. This court reviews an interpretation of EAJA by the Veterans' Court without deference. Jones v. Brown, 41 F.3d 634, 637 (Fed.Cir.1994). However, this court is precluded from reviewing "a challenge to a law or regulation as applied to the facts of a particular case" in the Veterans' Court. 38 U.S.C. § 7292(d)(2)(B) (2000), Halpern v. Principi, 313 F.3d 1364, 1369 (Fed.Cir.2002).

In Buckhannon, the Supreme Court rejected the catalyst theory as a permissible basis for award of attorney fees as a "prevailing party." Buckhannon Board and Care Home, Inc. (Buckhannon), owned and operated assisted living homes. A state fire marshal's inspection found that the Buckhannon assisted living homes failed West Virginia's "self-preservation" law requiring all residents to be capable of removing themselves from situations of imminent danger, such as fire. Buckhannon, 532 U.S. at 600, 121 S.Ct. 1835. Buckhannon sued the state in the United States District Court for the Northern District of West Virginia seeking declaratory and injunctive relief that the state's self-preservation law violated the FHAA and the ADA. With the case pending in the district court, the state legislature enacted two bills that eliminated the self-preservation requirement. Id. at 601, 121 S.Ct. 1835. As a result, the state moved to dismiss the case as moot. After the district court granted the motion, Buckhannon sought attorney fees under the FHAA and ADA as a "prevailing party" based on the theory that the litigation had been the catalyst for achieving ultimate victory outside court. Id. at 601-02, 121 S.Ct. 1835.

In Buckhannon, the Supreme Court drew a bright line distinguishing "prevailing parties" from plaintiffs not entitled to an award of attorney fees. On one side of the line, an enforceable judgment on the merits and a court-ordered consent decree permit "prevailing party" status and an award of attorney fees. Id. at 604, 121 S.Ct. 1835. On the other side of the line, achievement of the desired result by the catalyst theory precludes an award of attorney fees as a "prevailing party." Id. In rejecting the catalyst theory, the Court observed: "[A] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id. at 605, 121 S.Ct. 1835.

Buckhannon rejected the catalyst theory as a basis for determining a "prevailing party" specifically under the FHAA and the ADA. In Brickwood, 288 F.3d at 1379, this court held that Buckhannon's rejection of the "catalyst theory" applied to EAJA. Because Brickwood precludes the catalyst theory as a basis for the award of attorney fees under EAJA, this court need not address appellant's arguments to the contrary.

IV.

The issue in the present cases is on which side of the Supreme Court's bright line appellants' remands fall — on the side with a...