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Robinson v. O'Rourke

United States Court of Appeals, Federal Circuit

May 31, 2018

BENNIE C. ROBINSON, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal from the United States Court of Appeals for Veterans Claims in No. 14-619, Judge Robert N. Davis.

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

          Aaron Woodward, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Scott D. Austin; Christopher O. Adeloye, Brian D. Griffin, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Before Newman, O'Malley, and Reyna, Circuit Judges.

          OPINION

          O'MALLEY, CIRCUIT JUDGE.

         Veteran Bennie C. Robinson appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") denying his application for attorney fees under the Equal Access to Justice Act ("EAJA"). See Robinson v. McDonald, No. 14-0619 E, 2016 WL 703041 (Vet.App. Feb. 23, 2016) ("Fees Decision"). Robinson contends that he is entitled to fees because he prevailed before the Veterans Court when it set aside a disability rating decision of the Board of Veterans' Appeals ("Board") and remanded for the Board to consider arguments that Robinson made for the first time on appeal. Robinson v. McDonald, No. 14-0619, 2015 WL 2448037 (Vet.App. May 22, 2015) ("Remand Decision").

         We hold that, because the Veterans Court's remand was not predicated on administrative error by the Board and did not materially alter the legal relationship of the parties, Robinson was not a "prevailing party" within the meaning of the EAJA, and is therefore not entitled to attorney fees. Accordingly, we affirm.

         Background

         Robinson is a veteran of the United States Marine Corps and served in Vietnam from 1966 to 1969. Following his military service, Robinson began experiencing coronary problems and sought treatment at a Department of Veterans Affairs ("VA") medical facility. In February 2006, and again in November 2006, a VA cardiologist recommended that he undergo certain medical testing. The tests were not performed, however, until fourteen months later, on April 2, 2007. They revealed that Robinson suffered from left ventricular diastolic dysfunction.

         Robinson filed a claim with the VA for disability benefits for his cardiac condition. As relevant here, the VA granted Robinson a 60% disability rating effective April 2, 2007, the date he underwent cardiac testing. The Board affirmed, denying Robinson entitlement to a higher rating.

         On appeal to the Veterans Court, Robinson argued for the first time-through the same counsel that represented him before the Board-that his disability rating should have been assigned an effective date in February 2006, when his doctor first ordered tests, rather than April 2007, when those tests were performed. The government opposed, arguing that Robinson did not present this argument to the Board and therefore failed to exhaust his administrative remedies with respect to that issue. The government also noted that the record was unclear as to whether the VA or Robinson caused the fourteen-month delay in scheduling the medical tests.

         "[B]alancing the competing interests at stake, " the Veterans Court exercised its discretion not to apply issue exhaustion, and permitted Robinson to make his belated argument. Remand Decision, 2015 WL 2448037, at *2 (citing Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)). The court did not identify any error committed by the Board but "set aside" its decision and remanded for it to address Robinson's argument "in the first instance and make the relevant findings of fact." Id. at *1-2. In so ruling, the Veterans Court stated that Robinson was "free to submit additional argument and evidence as to the remanded matter." Id. at *2. The parties agree that the Veterans Court did not retain jurisdiction.[1]

         Robinson thereafter filed an application for attorney fees, arguing that, because he secured remand from the Veterans Court, he was a prevailing party within the meaning of the EAJA. The court denied Robinson's application. Fees Decision, 2016 WL 703041, at *1. Although the court acknowledged that a remand to the Board could confer prevailing-party status in some circumstances, the court determined that its particular remand decision did not confer such status on Robinson because it "was not predicated on administrative error by the Board, " and was for the sole purpose of allowing the Board to consider an issue raised for the first time on appeal. Id. The court therefore determined that its remand "does not, by itself, confer prevailing party status." Id. (citing Gordon v. Principi, 17 Vet.App. 221 (2003)). Robinson timely appealed that decision to this court.

         Discussion

         Before addressing the merits of Robinson's appeal, we first address the parties' jurisdictional dispute.

         I. Jurisdiction

         "This court's jurisdiction to review decisions by the Veterans Court is limited." Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1); see id. § 7292(a); see also Halpern v. Principi, 384 F.3d 1297, 1300 (Fed. Cir. 2004). Absent a constitutional issue, 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). Of course, "where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law." Kelly v. Nicholson, 463 F.3d 1349, 1352-53 (Fed. Cir. 2006) (internal quotation marks omitted).

         The government argues that we lack jurisdiction over this appeal insofar as it requires us to review the Veterans Court's factual determination that its remand was not predicated on administrative error. We disagree. We plainly have jurisdiction to "interpret[] . . . statutory provisions, " 38 U.S.C. § 7292(d)(1), which includes the EAJA. The issue of whether the Veterans Court's remand decision was predicated on administrative error for purposes of the EAJA, moreover, is a legal issue that falls squarely within our jurisdiction. See Thompson v. Shinseki, 682 F.3d 1377, 1382 (Fed. Cir. 2012) ("[W]e may address as a question of law Mr. Thompson's contention that a remand based upon Clemons necessarily must have been predicated on administrative error."); Gurley v. Peake, 528 F.3d 1322, 1326 (Fed. Cir. 2008) ("The question of whether Gurley is a prevailing party in this context is a legal question which we review de novo."); Kelly, 463 F.3d at 1352-53.

         Thus, while we are not at liberty to review the Veterans Court's factual determinations or application of law to the facts, Thompson, 682 F.3d at 1382, we have jurisdiction to review the Veterans Court's interpretation of the EAJA. We turn now to the merits of Robinson's appeal.

         II. Robinson Is Not a Prevailing Party

         The only substantive issue on appeal is whether the Veterans Court's remand conferred prevailing-party status on Robinson. That issue presents a question of law that we review de novo. Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir. 2007). Robinson, as the EAJA applicant, carries the burden of proving he is a prevailing party. Id. at 1366.

         For the reasons stated below, Robinson has not satisfied his burden, as he has not shown that the court's remand was predicated on administrative error or that it materially altered the legal relationship of the parties.

         A. Legal Principles

         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 fees and costs. The statute provides 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). The "essential objective" of the EAJA is to remove deterrents "from seeking review of, or defending against, unjustified governmental action because of the expense involved." Kelly, 463 F.3d at 1353 (internal quotation marks omitted). This objective is particularly salient in the veterans context, "which is intended to be uniquely pro-claimant." Id.

         By its terms, the statute applies only to a "prevailing party." 28 U.S.C. § 2412(d)(1)(A). In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the Supreme Court held, in the context of interpreting a fee-shifting provision in the Fair Housing Amendments Act of 1988, that a prevailing party is one who receives "at least some relief on the merits of his claim." Id. at 603 (internal quotation marks omitted); Davis, 475 F.3d at 1363 ("A party prevails in a civil action if he receives 'at least some relief on the merits of his claim.'" (quoting Buckhannon, 532 U.S. at 603-04)). The Court noted, however, that not every type or quantum of relief will suffice. Instead, the Court stated that the relief requires a "material alteration of the legal relationship of the parties." Buckhannon, 532 U.S. at 604 (internal quotation marks omitted); Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1364 (Fed. Cir. 2003). Thus, the Court noted that, while judgments on the merits and consent decrees generally confer prevailing-party status, minimal relief resembling an interlocutory ruling that reverses a dismissal for failure to state a claim generally does not. Buckhannon, 532 U.S. at 604-05; Dover v. McDonald, 818 F.3d 1316, 1318 (Fed. Cir. 2016).

         Applying the rule set forth in Buckhannon, we have held that remand to an administrative agency for further proceedings can provide the requisite relief required to confer prevailing-party status, but only if the remand is predicated-either explicitly or implicitly-on administrative error.[2] See, e.g., Ward v. U.S. Postal Serv., 672 F.3d 1294, 1299 (Fed. Cir. 2012) (per curiam) ("[W]e have held that remands not rooted in agency error do not result in prevailing party status."); Gurley, 528 F.3d at 1327 ("[T]he remand must be based on an administrative error in order for the appellant to qualify as a prevailing party."); Davis, 475 F.3d at 1364 ("In order for Davis to prevail on this argument, we must conclude that the Remand Order was either explicitly or implicitly predicated on administrative error."); Eady v. Shinseki, 321 Fed.Appx. 971, 974 (Fed. Cir. 2009) (per curiam) ("In order for the party to be considered 'prevailing, ' the remand order must have been either explicitly or implicitly predicated on administrative error." (internal quotation marks omitted)).

         We have stated, moreover, that, "[w]here there has been a remand to an administrative agency without a judicial finding of administrative error or a concession of such error by the agency, the default rule is that the remand is not based on administrative error for EAJA purposes." Davis, 475 F.3d at 1366 (emphases added). "This default rule places the burden on the EAJA applicant to prove, based on the record, that the remand ...


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