Cavaciuti: Federal Circuit Forecloses EAJA Fees for Writs of Mandamus

Cavaciuti v. McDonough, Case Number 2022-1531, decided August 3, 2023 was a case before the Federal Circuit concerning attorney fees under EAJA.

The Equal Access to Justice Act allows attorneys to represent veteran’s before the Veterans Court and Federal Circuit and only charge a fee if they win and then the U.S. government has to pay that fee.  It opens access to veterans to appeal decisions and without it, VA appeals would grind to a halt as most veteran’s would not be able to afford an attorney.  This is important because the vast majority of appeals to the Veterans Court result in remands, which means the VA had messed up in the decision making process.

This case specifically concerns a writ of mandamus to the Veterans Court.  Specifically, the VA was refusing to do what they clearly should and the veteran had to file a special type of motion asking the Veterans Court to force the VA to do it.  Ultimately, the Court didn’t have to rule on the motion because the VA finally did what it was supposed to do.  The VA asked to have the motion or writ rendered moot and close it.  The veteran argued the case was not moot

The veteran argued “the Veterans Court erred in not considering whether or not the terms of his relief were incorporated into the court’s previous dismissal order. He adds that the court also erred in not considering whether or not the VA made an admission of liability, or if its change in conduct was voluntary. Cavaciuti further argues that the court’s dismissal order materially changed the parties’ legal relationship by requiring the government to provide Cavaciuti relief. That material change, and the fact that the VA’s change in conduct was not voluntary, he asserts, distinguishes this case from one falling within the rejected catalyst theory.”  Id. at *5.

The government essentially argued the key to gaining EAJA fees is being a prevailing party and that dismissal of the order did not amount to a court-ordered change in the parties’ legal relationship that conferred prevailing party status. Instead, the government contends, this appeal relies on the catalyst theory, which “aptly describes Mr. Cavaciuti’s claim in this case,” but that does not convey prevailing party status.”  Id. at *5.

The Court affirmed the Veterans Court’s denial of EAJA fees and reasoned: “Crucially for the present case, an award of a benefit by the agency alone, even if prompted by the litigation, is insufficient without a judicial imprimatur. The Supreme Court has held that the catalyst theory is an improper basis for establishing an appellant as a prevailing party under the EAJA in the absence of a judicially sanctioned change in the legal relationship of the parties.”  Id. at *6.

It further reasoned:

“Here, there was no such judicial change in the legal relationship between the parties. The Veterans Court did not award any benefits or remand any claims because of Cavaciuti’s writ of mandamus petition. Rather, the court dismissed the petition as moot because the VA voluntarily changed its position and granted Cavaciuti entitlement to TDIU. The court’s dismissal order did not evaluate the merits of Cavaciuti’s petition, nor did it materially alter the parties’ legal relationship.

***

Regarding Cavaciuti’s argument concerning the lack of voluntariness of the government’s change in conduct, this is just another way of stating the catalyst theory rejected by the Supreme Court. The Court held in Buckhannon that an analysis of a defendant’s subjective motivations for changing its conduct—in particular, the desire to avoid a litigation loss—was legally insufficient to create prevailing-party status. The Court instead required a judicial action changing the legal relations of the parties. In this case, the VA implemented the Board’s TDIU decision, as requested by Cavaciuti following settlement discussions rather than based on any court order. Moreover, the fact that the government’s representations about the nature of the relief it was providing would estop it in the future from changing course does not render the Veterans Court’s dismissal a judicial imprimatur sufficient to make Cavaciuti the prevailing party. The government’s conduct merely created a future opportunity for a judicial order if the government did not live up to its representations.”

Id. at *7.

This was an excellent attempt to argue that the VA should pay EAJA when a court filing is necessary to get them to do what they are supposed to do.  However, the Supreme Court’s rejection of the catalyst theory seems to foreclose this possibility.

Decision by Judge Lourie and joined by Judges Dyk and Taranto.

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