EAJA: Prevailing Party

Prevailing Party: EAJA

The case of Earl B. Thompson v. Eric K. Shinseki, Opinion Number 09-1026(E), decided November 19, 2010, concerns prevailing party status in an EAJA application and is thus probably most interesting to attorneys who practice before the court.

The underlying case concerned a JMR involving PTSD. In the JMR the VA did not specifically admit an error but stated the facts are analogous to a recently decided case and on remand the BVA should address the legal propositions outlined in the recent case.

Initially, the veteran and Secretary argued whether the new case created new law or merely restated established legal precedent. The Court rejected this question as dispositive because the BVA might not have erred unless the legal precedent was actually raised below. Still, the Court found the new case merely restated a legal precedent but then wiggled out of ordering the payment of fees because the JMR showed no explicit or implicit statement of error. Instead, the Court found the parties might have merely meant to settle the case before the Court by essentially agreeing to let the BVA reconsider with the new opinion to be specifically addressed.

The opinion seems dangerous—an attorney could lose out on his fee, but that danger is mitigated by the failure to make sure the order definitely acknowledged an error and the unusual and probably rare set of facts that allowed the Court to find no implicit acknowledgement of error. Still, an attorney seeking JMR based on a newly decided case needs to be careful the reference to the new case presents it as stating established legal precedent and then stand firm on demanding the VA admit it erred when it did not address that established precedent.

I also would highlight the concurring opinion’s analysis (Judge Lance) and proposed finding that just because the VA will not accept the magical “error” language should not stop the Court from finding error. Since prevailing party status is usually not in question, this would not make substantially more work for the Court and would seem to be the most fair way to determine if a veteran prevailed or not.