Patrick: For the Love of the Veteran (An EAJA Denial)

Patrick: For the Love of the Veteran (An EAJA Denial)

The decision in Carolyn J. Patrick v. Eric K. Shinkseki, Opinion Number 08-10899(E), decided July 19, 2010, was reconsideration of a single-judge decision which denied an EAJA application. The decision again denied the application.

A 1999 BVA decision denied that a prior decision contained clear and unmistakable error. In 2002 the Court of Veteran Appeals affirmed but this decision was vacated and remanded by the Court of Appeals for the Federal Circuit in 2004. The Court of Veteran Appeals then again affirmed the decision in 2006 and in 2007 the Court of Appeals for the Federal Circuit again vacated and remanded the case. The Federal Circuit noted the argument was based on whether the BVA had misapplied 38 U.S.C. Section 1111 in 1986 and directed that the BVA determine whether the government had rebutted the presumption of soundness found under section 1111 by providing clear and unmistakable evidence of no in-service aggravation of the claimed disability. In 2008, the Court of Appeals for Veteran Claims vacated the BVA decision and “determined that in accordance with the Federal Circuit’s Wagner holding that its interpretation of section 1111 applied even in the CUE context, in order to determine whether the presumption of soundness had been rebutted, the Board in May 1999 was then required to consider whether the Board in 1986 had been presented with clear and unmistakable evidence that either Mr. Patrick’s condition did not increase in severity during service or any increase was ‘due to the natural progress of the disease.’” Id. at *3.

The issue was whether the Secretary had met his burden of demonstrating the government’s position was substantially justified at both the administrative and litigation stages. Regarding the administrative stage, the Court noted “a failure to provide an adequate statement of reasons or bases does not in all cases negate a finding that the Secretary was substantially justified.” Id. at *5. “In the underlying case, the catalyst for the remand was the Federal Circuit’s holding that its interpretation of section 1111 set forth in Wagner applied even in a CUE context. Although the error found by the Court was termed a reasons-or-bases error, that error became apparently only after the Federal Circuit directed remand to the Board…. Thus, because the purpose of the Court’s remand was for the Board to comply with the Federal Circuit’s then-recent interpretation of section 1111, in light of the law as it was understood at the time of the 1999 Board decision (which required only clear and unmistakable evidence of preexistence to rebut the presumption of soundness), the Board’s failure to provide Mrs. Patrick with reasons or bases regarding whether the Secretary had rebutted the aggravation prong of the presumption of soundness under section 1111 was reasonable.” Id. at *5.

Regarding substantial justification at the litigation stage, the Court accepted the Secretary’s argument that his position was substantially justified because the Court had found the presumption of soundness as interpreted in Wagner does not have retroactive application in a CUE case. Effectively, the Court is using its previous (and incorrect decision in the same case) to say the Secretary’s position was justified. This is problematic to say the least. Also regarding the administrative stage, the problem is that the Federal Circuit stated in its decision that Wagner did not change the law but explained what section 1111 has always meant. Thus, it seems the denial of the EAJA application is set up for an appeal to the Federal Circuit.

Still, this is one of those cases that illustrates the perversity that being the first attorney to win a hard case might not be in your best short-term business interests.

Decision by Chief Judge Greene with Kasold and Hagel.