Butts: EAJA Award for a JMR Resulting from a Federal Circuit Decision

Butts v. McDonald, Case Number 14-3019(E), decided June 3, 2016 involved an attorney fee request under EAJA.

This case involved a JMR that resulted after the Federal Circuit issued an opinion overturning a CAVC decision regarding 38 CFR 3.321(b)(1) and reference to multiple or individual disabilities when evaluating for a higher rating pursuant to 3.321.  The appealed from Board decision was issued between the CAVC decision and the CAFC decision reversing the CAVC decision.

The parties to Butts agreed the CAFC decision applied and entered into a JMR.  The veteran’s attorney then sought fairly modest attorney fees.  The question centered on whether the Secretary’s position was substantially justified.

The decision was a barnburner.  It was an en banc decision with multiple dissenting opinions.  The majority awarded EAJA fees.

The majority noted the Secretary bore the burden of demonstrating its position was substantially justified.  It noted the Secretary’s seeming only argument in favor its position was that the general scheme of the rating schedule assigns scheduler ratings on a disability by disability basis.  The majority also notes the Board decision does not explicitly reference the CAVC decision, however, it counts in terms of substantial justification the fact the Board was acting in accord with existing judicial precedent.  The majority then notes that compliance with precedent does not relieve the Court of its duty to evaluate the reasonableness of the Secretary’s position.  The majority focuses on the totality of the circumstances.  It noted the the dissent argues the CAVC decision demonstrates the Secretary’s position was reasonable, but notes a CAVC error in deferring to the Secretary’s interpretation of a regulation does not end the matter and that cannot be the dispositive factor.  The majority also expresses the profound opinion that if compliance with precedent was a bar to EAJA fees, veterans with limited means would face even greater difficulty obtaining counsel to bring valid challenges to existing case law.

Judge Kasold wrote a concurring and dissenting opinion that focused on the right to appeal to the CAFC and stated the a decision by the CAVC should not operate to prevent EAJA fees.

Various dissenting opinions were written.  Perhaps the most academic and vigorous was by the Judge Bartley who is concerned the Board’s reliance on a CAVC decision could be considered not substantially justified.  Judges Lance and Moorman also wrote a powerful dissent that seemed at its base to be truly antagonistic to EAJA fee awards in general.

This decision is important because it defends EAJA fees and thus preserves the ability for veterans to obtain counsel.  If EAJA fees were not available or seriously curtailed, then the simple truth is that attorneys could not afford to take these cases and veterans would  be left making pro se arguments.  However, this decision also shows a deep split in the judges of the CAVC and an apparent dislike of EAJA fees by some members of the dissenting group.

Decision by Judge Davis, joined by Judge Hagel, Schoelen and Greenberg.  A concurring and dissenting opinion by Judge Kasold.  Dissenting were Judges Lance, Pietsch, Bartley, and Moorman.