Greenidge: EAJA Fees and Prevailing Party Status

Greenidge v. McDonough, Opinion Number 20-7820(E), was decided May 31, 2024 by the Veteran Court and concerns attorney fees.

The case concerns when attorney fees can be granted on an appeal.  The Court had held it lacked jurisdiction to award attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA) after it had set aside a Board decision for lack of jurisdiction.  That decision was appealed to the Federal Circuit which led to a remand for the Veterans Court to reconsider in light of Halpern v. Principi II, which had held the authority to award EAJA fees was tied to the exercise of appellate jurisdiction and not contingent upon whether the Board properly exercised its own jurisdiction in the underlying decision.

On reconsideration, the Veterans Court concluded its prior decision was error and the Corut possessed jurisdiction to entertain the challenge to the Board’s exercise of its jurisdiction and thus had authority to consider the EAJA application.  However, the Court found the veteran was not a prevailing party and thus denied the application.

Factually, the veteran was granted a 10% PTSD rating in 1993 which was not appealed.  Subsequently, he filed a CUE motion and the RO denied the motion.  Before the veteran could file a NOD, the Board adjudicated the CUE motion on its own volition and denied revision of the underlying decision.  The veteran ultimately filed a NOD, after the Board issued a decision on the matter.  Before the NOD was filed, the veteran also appealed the Board’s decision to the Veterans Court.  The parties agreed the Board lacked jurisdiction to adjudicate the CUE motion because a NOD had not yet been filed and thus the Board did not have jurisdiction.  The veteran then sought EAJA fees and was denied.

Initially, it is helpful the Court reaffirmed Halpern II that “our EAJA jurisdiction isn't defeated by a conclusion that the Board issued an unauthorized, or "ultra vires," decision. Rather, when our review is properly invoked to consider whether the Board stayed within its own jurisdictional bounds, we are exercising the "jurisdiction" over a "civil action" that section 2412(d)(1)(A) says is necessary before we are authorized to award EAJA fees and expenses.”  Id. at *4.  In other words, “Taken together, the Federal Circuit's decisions in Hudson and Halpern II make clear that the "jurisdiction" required by section 2412(d)(1)(A) before an EAJA application can be considered is not confined to the Court's jurisdiction over the merits of a Board decision but encompasses the Court's jurisdiction to assess the propriety of the Board's exercise of jurisdiction.”  Id. at *9.

Then, the Court pivoted to prevailing party status and denied EAJA fees on that basis.  The Court determined: “he most immediate obstacle for the veteran is that there was no remand to the Board in this case; instead, the Court simply vacated the Board decision and dismissed the appeal. Indeed, the whole basis of the veteran's appeal was that the Board reached out and prematurely adjudicated the CUE motion before he had decided to file an NOD and invoke the Board's jurisdiction. Since there was no matter properly before the Board at the time it rendered its decision, there was nothing for the Court to remand….  More importantly, the absence of a remand order here means perforce that there was "no remand order clearly call[ing] for further agency proceedings." Blue, 30 Vet.App. at 67. That is a critical consideration in this case. In the Halpern litigation, the Federal Circuit ultimately concluded that this Court's disposition of the appeal—vacating the Board decision (for lack of original jurisdiction to determine an attorney's eligibility for a contingent fee award) and remanding the case to the Board with instructions to dismiss—did not confer prevailing party status.”  Id. at *10.

Judge Jaquith dissented on the prevailing party issue.  He roots his idea of a prevailing party in the actual definition of “prevail” and the facts at hand.  He explained: “Prevail is precisely what the veteran did in his underlying case, in which he appealed the Board's October 2022 decision prematurely denying his CUE motion—which was not yet before the Board—the Secretary agreed that the Board had erred, and the Court vacated the Board's decision and dismissed the appeal so the veteran's later appeal of the regional office's denial of his CUE motion could move forward.”  Id. at *12.  He argued the requirement of a remand is misplaced and that instead stated in the context of a CUE motion, “vacating an improper decision is a pivotal prevailment because denial of a CUE motion may foreclose any further attempt at revision.”  Id. at *15.

I would expect this case to again go to the Federal Circuit as Judge Jaquith’s explanation of a prevailing party is persuasive.

Opinion by Judge Toth and Greenberg with a dissent by Judge Jaquith.

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