Robinson: EAJA fees and Prevailing Party Status

Robinson v. O’Rourke, Opinion Number 2016-2110 is a Federal Circuit decision dated May 31, 2018 and notable as it follows the Veterans Court’s decision in Blue v. Wilkie issued on May 16, 2018.
This case deals with Equal Access to Justice Act fees (EAJA) which are important in that they are the primary mechanism through which veteran’s attorneys are paid for work before the Courts.

In this case, the veteran’s attorney argued (and the dissenting opinion agreed) that EAJA fees should have been allowed after a remand by the Veterans Court.  The Veterans Court denied fees saying the remand was not predicated on administrative error and did not materially alter the legal relationship between the parties.

The Federal Circuit found the veteran’s attorney for the first time argued before the Veterans Court that the effective date should have been earlier than that determined by the Board.  The Veterans Court permitted the veteran’s argument and remanded but did not identify any error by the Board and specifically said it was allowing the Board to address the arguments in the first instance.

The Federal Circuit noted where a remand without a judicial finding of administrative error or a concession of such error, the default rules is that remand is not based on administrative error for EAJA purposes and the EAJA applicant has the burden of proving the remand was predicated on administrative error.  Id. at *8.

The Federal Circuit also noted the recent Supreme Court decision in CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission, 136 S. Ct. 1642 (2016), which addressed a Civil Rights Act fee shifting statute and states:

“a defendant need not obtain a favorable judgment on the merits in order to be a ‘prevailing party.’” Id. at 1651. The Court reiterated that the “touchstone” of the prevailing-party inquiry is whether there has been a “material alteration of the legal

relationship of the parties.” Id. at 1646 (internal quotation marks omitted). This alteration, the Court stated, “must be marked by ‘judicial imprimatur.’”

Id. at *9.

The Federal Circuit then noted “Neither CRST nor Raniere, however, dealt with remand

to an agency as a basis for finding prevailing-party status, as here.”  Id. at *10.  It then stated: “For these reasons, it is unclear whether, in the wake of CRST, we must reconsider or clarify our precedent requiring administrative error in cases of remand for further agency proceedings. We need not resolve that issue here, however.  Robinson is not a prevailing party under either our precedent or the guidance set forth in CRST.”  Id. at *10.

The Court then explained:

The remand at issue was not predicated on administrative error. The Veterans Court did not address the merits of Robinson’s appeal, much less identify any error committed by the Board below. Nor could it, as Robinson did not argue that he was entitled to an earlier effective date before the Board. Instead, the Veterans Court considered Robinson’s belated argument, and remanded for the Board to make factual findings related to that issue in the first instance. In other words, the remand required the Board to consider an argument that it could not have considered previously, through no fault of its own.

Id. at *11.

The Court continued:

The Veterans Court’s remand decision also did not materially alter the legal relationship between the parties in the manner contemplated by CRST. While it is true that Robinson received additional consideration with respect to his objection to the Board’s effective date determination upon remand, that relief was not predicated on an allegation that the Board had acted improperly. And, as described above, the Veterans Court did not agree—and indeed, could not have agreed—with such an allegation. Even if the Veterans Court’s remand decision compelled the Board to consider new evidence and arguments on remand, the decision did not materially alter the relationship between the parties. Instead, it merely afforded Robinson an opportunity to have his otherwise

waived claims considered by the Board.

Id. at *17.

I believe (as does the dissent) that the Court simply failed to appreciate the nonadversarial nature of VA claims at the agency level.  Id. at *5 (dissent by J. Newman).  Judge Newman then argues:  

The judicial obligation is to assure that the veteran has a reasonable opportunity to obtain the benefits to which he is entitled, an obligation that required Mr. Robinson to take an appeal to the Veterans Court in order to obtain consideration by the BVA of the effective date.  When the veteran has no recourse but through the courts, “EAJA is a vital complement to this system designed to aid veterans, because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.”

Id. at *5 (dissent)

Secondarily, almost all Federal Circuits have a minor issue regarding jurisdiction.  The Federal Circuit can only hear legal disagreements from the Veterans Court (and not decide factual differences).  The Secretary believes this limitation is nearly without limit, but here the Court agreed they could hear the case because they are reviewing the Veterans Court’s interpretation of EAJA and not reviewing the Veterans Court’s factual determinations or application of the law to the facts.

Decision by Judge O’Malley and joined by Judge Reyna.  Dissent by Judge Newman.