BENNIE C. ROBINSON, Claimant-Appellant
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
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.
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.
Newman, O'Malley, and Reyna, Circuit Judges.
O'MALLEY, CIRCUIT JUDGE.
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)
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.
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.
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.
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.
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
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.
addressing the merits of Robinson's appeal, we first
address the parties' jurisdictional dispute.
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).
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.
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 Is Not a Prevailing Party
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.
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.
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
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.
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).
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. 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)).
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 ...