Blue: EAJA and Prevailing Party Status

Blue v. Wilkie, Case Number 15-1884(E), decided May 16, 2018 is an opinion that will mostly be of interest to veteran’s attorneys. 

Attorneys are paid for representation before the Court under the Equal Access for Justice Act (EAJA).  The Act is important for without it, most veterans would not be able to afford representation before the Court and the number of attorneys willing to perform such work would immediately shrink substantially.

A critical element to being able to be paid under EAJA is that the veteran be a “prevailing party.”  This usually means the parties or the Court finds the Secretary made an administrative error.  Administrative error occurs in most, but not all, remands.

This case was unusual in that the initial decision explicitly found “[a]lthough [it] can find no error in the Board's failure to discover the exact dates of the appellant's treatment in California or in VA's failure to request records dated at least 2 years later than the appellant's testimony revealed, the appellant has now identified evidence in the record that meets his burden of providing VA with the information necessary to assist him in obtaining potentially relevant VA records.” Id. at *2.

The Veterans essentially argued that while the Court found no administrative error, it did provide the relief requested. 

The Court began by stating “the underlying merits decision sets the stage for a subsequent EAJA determination.  However, that decision (and the language it uses) is not the end of the matter. Rather, it sets a ‘default rule,’ essentially determining whether the onus will be on the EAJA applicant to demonstrate that a remand without an express finding of error was in fact predicated on administrative error to be deemed a prevailing party.” Id. at *5.

Turning to the case at hand, the Court stated that in the earlier decision “[t]he Court did not explicitly find error either. In fact, the opposite is true. The remand order reflects that the Court could ‘find no error’ on the part of the Board or VA.  Thus, per Davis, the default rule is in effect here, which requires that the Court presume that there is no administrative error and for the appellant to prevail he must demonstrate that the remand order was, despite its language, actually predicated on such error.”  Id. at *6-7.

Practically speaking this means: “First, it is clear that an EAJA decisionmaker is required to examine the context of the remand order itself to determine whether the remand was implicitly predicated on agency error.  When looking at such context, the Federal Circuit examines not only the critical language of the remand order but also the nature of the remand, the record, and the actions of both parties and the merits decision-maker.” Id. at *8.

“Therefore, for EAJA purposes, the language of the remand order, as well as the circumstances surrounding the remand, are the fundamental basis for the determination of whether implicit agency error exists in a remand order. To evaluate the circumstances or context of the remand, the Court can review the parties' perceptions, address actions in favor of judicial policy, and even review the entirety of the record.”  Id. at *9.

Here, Blue argued he was a prevailing party because the remand was predicated on failure to obtain relevant agency records and remanded the case for further adjudication on that basis.  Also, “At oral argument, Mr. Blue asserted that, but for the existence of an administrative error, the Court could not have determined that vacatur and remand were necessary in this case.”  Id. at *10.

The Court found “although the merits decision-maker in part explicitly found no error in its remand order on the underlying merits decision, we conclude that, under the unique circumstances presented by this case, the appellant has met his burden of demonstrating that the remand in this matter must have been implicitly predicated on an "actual or perceived" agency error and the appellant has demonstrated that he is a prevailing party in this matter.”  Id. at *11.

While the case might hold less interest for veterans than attorneys, it is important to understand the history of attorney involvement in the VA system.  For many years, attorneys were effectively prevented from making a living handling VA claims.  The result was few did it and the VA often applied the law in ways that was not favorable to veterans.  With the advent of the ability for attorneys to make a living handing VA claims, attorneys have pressured the VA and lobbied the Courts for interpretations and applications of the law that are more veteran friendly.  This case upholds the broader role attorneys play within the system. 

Decision by Judge Allen and jointed in by Pietsch and Meredith.

O’Brien: Dependents versus Legal Custody a Question of Statutory Interpretation

O’Brien v. Wilkie, Case Number 16-2651, decided May 4, 2018 considers the whether a grandchild the veteran has legal custody over should be considered a dependent entitling him dependency compensations.

The Court viewed this as a plain language statutory interpretation case.  It stated the term dependent in 38 U.S.C. § 1115 includes only a “child”, as defined by 38 U.S.C. § 101(4)(A).  The definition in 101(A)(4) is

                                                   

a person who is unmarried and—

(i) who is under the age of eighteen years;

(ii) who, before attaining the age of eighteen years, became permanently

incapable of self-support; or

(iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years),

is pursuing a course of instruction at an approved educational institution;

and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member at the time of the veteran's death.

The veteran argued since “dependent” is not defined in Section 1115 the Corut should interpret it broadly to include persons actually dependent on the veteran.  Here the veteran was the grandfather and had legal custody established by a state court and had raised the child since they were in diapers. 

However, the Court noted the child did not fit within in the definition of dependent found in Section 101(4)(A) and ended its enquiry there.

The veteran also raised a constitutional issue to the VA’s definition of “dependent” as as violating the First Amendment’s right of intimate association. He argued “a government benefit may not be conditioned in a way that penalizes the exercise of a fundamental right, such as the right of family association.” Id. at *8.  He further explained the Court should apply the doctrine of constitutional avoidance, such that if a statute is susceptible to two constructions, one of which raises constitutional questions and one that does not, the latter should control. Id. at *9.  The Court declined to enter into this analysis on the basis that the veteran was not directly challenging the constitutionality of the language and then explaining the plain language of § 1115 is unambiguous and therefore not susceptible to two constructions. Id. at *9.

Judge Greenberg dissented arguing these facts demonstrate the child is an actual dependent and made an argument that Congress intended to support veterans and that the black letter law should be malleable enough to accommodate unusual situations.  He also noted the Social Security statute would allow the child to be considered a dependent and to view the veteran’s statute differently would yield an absurd result at odds with Congressional intent.

Decision by Judge Meredith and jointed in by Judge Pietsch with Judge Greenberg dissenting.