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Remand to VA Does Not Get Vet Fees and Expenses

Gurley v. Peake, 528 F.3d 1322 (C.A. Fed., June 9, 2008)

Randolph Gurley served in the U.S. Army from 1972-1974. In 1980, he applied to the Regional Office of the Department of Veterans Affairs (“VA”) to receive a disability rating for a knee injury. In 1989, he was awarded a 10% disability rating. In 1994, Gurley attempted to receive an increased disability rating. Over the next ten years, the VA denied Gurley’s claim for an increase in disability rating. Gurley appealed to the Board of Veterans’ Appeals (“Board”), several times and the Board remanded to the VA for further consideration each time.

On June 25, 2004, the Board increased Gurley’s disability rating from 10% to 20% but rejected his argument that he deserved a higher rating. In that same opinion, the Board also addressed some related claims of Gurley including a claim for service connection for a psychiatric disability that he claimed was incurred during hospitalization for his knee. Gurley had also made a claim for a total disability rating due to unemployability due to service-connection disability (“TDIU”). The Board did not make a decision on the merits for the two additional claims but remanded them to the VA.

Gurley appealed and argued that the Board should not have addressed the 20% disability rating for his knee while remanding the other two claims, because all three claims were “inextricably entwined.” Gurley did not cite any authority that suggested that the Board was required to decide all of the claims together. In October, 2005 both parties filed a joint motion to remand, asking that the Veterans Court vacate the judgment that limited the knee disability rating to 20% and remand it so that it would be heard by the VA with the other two claims. This motion was granted. After the remand order, Gurley filed an Equal Access to Justice Act (“EAJA”) application seeking attorneys fees in excess of $6000 because he was the prevailing party by having the knee rating order vacated and remanded.

The VA opposed Gurleys’ application and argued that Gurley was not a prevailing party because the decision to remand was merely for judicial economy and the avoidance of piecemeal litigation. Under the EAJA, only prevailing parties can recover attorney’s fees and expenses. To be a prevailing party, there must be “some relief on the merits.” The Supreme Court has determined that remands do not constitute relief on the merits nor confer prevailing party status unless the order to remand is based upon administrative error.

The Federal Circuit determined that Gurley was not a prevailing party because the decision by the Veterans Court to remand was based solely on judicial economy purposes and not because an error had been made. The Board was not required to remand the claim to the VA, therefore Gurley was not a prevailing party and not entitled to attorney’s fees under the EAJA.



 

 

Judge(s): DYK
Jurisdiction: U.S. Court of Appeals, Federal Circuit
Related Categories: Civil Remedies , Veterans
 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Kenneth Carpenter Carpenter Chartered

 
Defendant Lawyer(s) Defendant Law Firm(s)
Phyllis Baunach US Department of Justice

 

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disability rating of more than 20% rather than remanding the issue, was not not have been predicated on administrative error. relief on the merits." former employees, 336 f.3d at 1366. as we made clear in the board was obligated to remand to comply with harris. but, as we have noted background we therefore agree with the veterans court that the "sole basis" for the remand claimant-appellant. process." 1 vet. app. at 183. the court found that such piecemeal review could render the language of the joint motion that states that "remand is warranted to comply based upon the final judgment entered in the civil action." 384 f.3d at 1304-05. we claims both before the veterans court); bagwell v. brown, 9 vet. app. 337, 339-40 remanded to the va for further consideration. the parties agree that remand is warranted to comply with the court's from the veterans court to the va was based on agency error, "namely the va's failure instead should have remanded that claim with the other two remanded claims. the 7292(d)(2). we therefore review without deference the veterans court's interpretation the plaintiff qualifies as a prevailing party . . . without regard to the outcome of the 28 u.s.c 2412(d)(1)(a) (emphases added). veterans court finds administrative error or if the secretary concedes it." davis v. james b. peake, m.d., secretary of veterans affairs, the veterans court did not retain jurisdiction. gurley cannot be considered a "prevailing party" under eaja. but remanded a separate claim for "compensation for a service-connected heart conclusion initially issued gurley a non-compensable rating for his knee injury. however, in 1989, counsel, and martin j. sendek, attorney, office of the general counsel, united states inextricably intertwined. harris v. derwinski, 1 vet.app. 180, 183 (1991). gurley had met "the criteria for a 20 percent disability rating [for the knee injury], but no eaja provides in relevant part: the remand order, does not support a finding of administrative error. there, we make an award unjust. hanrahan v. hampton, 446 u.s. 754, 758-59 (1980) (holding that a remand to the no costs. j.a. at 16 (alteration in original). ii fees and expenses pursuant to the equal access to justice act ("eaja"), 28 u.s.c. dismissals (cited by gurley in his brief) were also based on notions of finality and latter claims, gurley argued, were "inextricably intertwined" with the knee injury claim, id. the court found that, in this case, and in contrast to harris, it did have jurisdiction 2007-7148 8 gurley's application, arguing that gurley was not a "prevailing party" under eaja 2 eaja"); muhur v. ashcroft, 382 f.3d 653, 654-55 (7th cir. 2004) (holding that the after the remand order issued, gurley timely filed an eaja application with the both to the va. court to the va was involved. we recognized that, under schaefer and hudson, "in the regional office with the other two remanded claims. claimant-appellant, orders may confer prevailing party status because "[s]ecuring a remand to an agency united states department of justice, of washington, dc, argued for respondent-appellee. judicial economy and avoidance of piecemeal litigation require that the the rule that a party who has secured a remand to an administrative claim was intertwined with other claims pending before the va) or remanded such for example, in former employees of motorola ceramic products v. united case was harris v. derwinski, where the veterans court dismissed the appellant's randolph s. gurley, appellant was a prevailing party based on the district court's reversal of her removal whose petition for review of a [board of immigration appeals] decision is granted by our 2412(d). gurley v. nicholson, 20 vet. app. 573 (2007). because we agree with the since "[a] grant of a total rating based upon individual unemployability would have a 299 (1993); sullivan v. hudson, 490 u.s. 877, 888 (1989). in that context, remand judicial resources." id. (quoting harris, 1 vet. app. at 183). there is nothing in the joint context of social security cases, a remand without retention of jurisdiction terminates va three times denied gurley's claim for a disability rating increase. gurley three times was judicial economy rather than administrative error. under these circumstances, support of his contention that the remand was for administrative error, gurley relies on confer prevailing party status. id.; see also akers v. nicholson, 409 f.3d 1356, 1359 before michel, chief judge, dyk and moore, circuit judges. rights attorney's fees awards act of 1976). a different rule prevails when federal court randolph s. gurley ("gurley") appeals a final decision of the united states court can constitute the requisite success on the merits." kelly v. nicholson, 463 f.3d 1349, additional evidence, but this time was denied any increase. over the next ten years, the connected with the increased knee injury rating claim. the va filed an opposition to a remand to the agency which remand grants relief on the merits sought by the plaintiff, concluded that a remand to comply with harris, absent any jurisdictional problem, could contrary to gurley's argument, however, not "every remand constitutes a grant of agency proceedings where there has been no retention of jurisdiction by the court." id. underlying separate claims are `intimately connected', the interests of judicial economy 2007-7148 4 j.a. at 16 (emphases added). the joint motion asserts that separate review of claims error. in harris, the veterans court dismissed the veteran's appeal under the finality claims be adjudicated together. smith v. gober, 236 f.3d 1370, 1373 because we conclude that gurley is not a "prevailing party" for purposes of appeal from the united states court of appeals for veterans claims in 04-1930(e), be considered a prevailing party based on the court's remand to the board of motion for remand, which it incorporated by reference. the court vacated the portion of and the trial court does not retain jurisdiction, the securing of the remand order is itself order and a remand of her case for asylum to the immigration service); rueda- on review of a decision of the veterans court, this court "shall decide all relevant review of administrative agencies is involved. see shalala v. schaefer, 509 u.s. 292, retained jurisdiction, we have developed an approach for determining when a remand to nor unnecessarily interfere with the department of veterans affairs' (va) deliberative united states court of appeals for the federal circuit thus, the question here is whether the remand is for administrative error. the the veterans court held that gurley was not a prevailing party under eaja, appeal for lack of jurisdiction. 1 vet. app. 180, 183 (1991). in harris, the board had because his remand was not predicated on agency error. the veterans court agreed. in halpern, we followed former employees where a remand from the veterans stated purposes of `judicial economy and avoidance of piecemeal litigation.'" j.a. at 5. compensation. gurley also made a claim for entitlement to a total disability rating based the court concluded that it had no jurisdiction over the claim, which it dismissed without states, 336 f.3d 1360 (fed. cir. 2003), following schaefer, we held that "[w]hen there is va to be heard with the other two claims. the joint motion stated in relevant part: connection claim." id. at 1354. "[r]emands based on our recognition of agency error explicitly or implicitly predicated on administrative error." id. with . . . harris." j.a. at 16. gurley urges that the veterans court remanded because that are "inextricably intertwined" would result in "meaningless" review and "a waste of final. id. at 1371. in doing so, we referred expressly to the "interests of judicial above, harris did not involve a determination that the va committed administrative result of gurley's left knee disability, and therefore entitled gurley to increased subsection (a), incurred by that party in any civil action (other than cases action, brought by or against the united states in any court having `significant impact' on his claim for an increased rating for his left knee disability." j.a. eaja, we affirm. and other expenses, in addition to any costs awarded pursuant to 2007-7148 2 prejudice. the veterans court cases following harris involving remands rather than gurley served in the army from 1972 to 1974. in 1980, gurley applied to the amount of $6,429.72. gurley maintained that the board's position, denying him a 1354 & n.*** (fed. cir. 2006). we explained that "the inquiry is whether [the party] was united states was substantially justified or that special circumstances claims to the board so that the claims could be considered simultaneously. the leading phyllis jo baunach, trial attorney, commercial litigation branch, civil division, rating for his left knee disability to 20%, while at the same time rejecting gurley's gurley timely appealed the board's decision on the left knee disability claim to see henderson v. west, 12 vet. app. 11, 20 (1998) (remanding two director. of counsel on the brief were michael j. timinski, deputy assistant general in kelly v. nicholson, we found that the remand an administrative agency occurs `because of alleged error by the agency.'" davis, 475 whether gurley is a prevailing party in this context is a legal question which we review 1353 (fed. cir. 2006). social security cases." id. at 1305.2 1 davis itself, we held that a remand to allow the veteran to present new evidence was (1996) (remanding an inextricably intertwined claim). "could render any review by this court of the decision [on the other claim] (fed. cir. 2001). the court has held that where a decision on one issue status, but the nature of the remand does require us to consider the context of the remand requiring further agency proceedings because of alleged error by the agency, care home, inc. v. w. va. dep't of health & human res., 532 u.s. 598, 603 (2001). f.3d at 1364 (quoting former employees of motorola, 336 f.3d at 1366). to be and avoidance of piecemeal litigation require that the claims be adjudicated together." because his remand was not predicated on administrative error. instead, the court with her on the brief were jeanne e. davidson, director, and bryant g. snee, deputy prevailing party has been followed in every circuit that has considered the question. held that a remand based on the discovery of new evidence is not based on 2007-7148 7 claimed that his left knee disability left him unable to work or to find gainful employment, agency, where the remanding court retains no jurisdiction, can be considered a carolina, for a disability rating based on the residuals of left knee synovitis. the va doctrine. it stated that it "will neither review [board] decisions in a piecemeal fashion 2007-7148 3 in a variety of contexts, we have specifically held that a remand does not confer v. appealed to the board of veterans' appeals ("board"), and the board three times party status on the successful party. see hewitt v. helms, 482 u.s. 755, 762 (1987); the supreme court has been clear that remands by the courts of appeals to district the appellant to qualify as a prevailing party. we stated: "where the plaintiff secures a of eaja. davis v. nicholson, 475 f.3d 1360, 1363 (fed. cir. 2007). the question of veterans court seeking an award of attorneys' fees, costs, and expenses in the total gurley applied for and was awarded a disability rating increase to 10%. in february jurisdiction to hear on appeal, but the case also "involved concepts of judicial economy." questions of law, including interpreting constitutional and statutory provisions." 38 de novo. id. then found "no reason to distinguish remands from the veterans' court from remands in see johnson v. gonzales, 416 f.3d 205, 210 (3d cir. 2005) (concluding that "an alien discussion judge bruce e. kasold. 3 2007-7148 challenge to a law or regulation as applied to the facts of a particular case." 38 u.s.c remands "arose from a change in law"). and that he was entitled to compensation based on his demonstrated unemployability. on june 25, 2004, the board issued a decision increasing gurley's 10% disability merits," and accordingly held that the appellant was a "prevailing party." 463 f.3d 1349, veterans court that gurley is not a "prevailing party" under eaja, we affirm. decided: june 9, 2007 solely for purposes of judicial economy. the joint motion states that "[w]here the facts "substantially justified" because the board remanded two claims that were intimately remand. as we concluded in davis, "the determination of agency error is not limited to (emphasis added). we recently reaffirmed that in cases "where the court below has not gurley timely appealed. we have jurisdiction pursuant to 38 u.s.c. 7292. the claim for an increased disability rating. first, gurley claimed entitlement to service was not one based on a determination of administrative error, and therefore did not regional office of the department of veterans affairs ("va") located in columbia, south to consider all evidence and material of record before deciding a material issue on the ___________________________ connection for a psychiatric disorder. this claim was that a psychiatric disability, judge bruce e. kasold claimant-appellant, 1366. holding in harris v. derwinksi, 1 vet.app. 180 (1991). where the facts dismissed the appeal as outside of our jurisdiction because the decision below was not at 26. gurley did not cite any authority suggesting that the board was obligated to department of veterans affairs, of washington, dc. 1994, gurley again sought an increased disability rating for his knee injury based on 2007-7148 2007-7148 5 considered a prevailing party, "we must conclude that the remand order was either not a remand predicated on administrative error. id. similarly, in vaughn v. principi, we judicial economy.3 meaningless and a waste of judicial resources," the two claims are on october 5, 2005, before the government filed its brief, the parties filed a joint dyk, circuit judge. respondent-appellee. the agency argues that no administrative error was involved here. we agree. in our decision in smith v. gober, 236 f.3d 1370 (fed. cir. 2001), cited in "so closely tied" to each other, the board's decision was not a final decision. id. at 183. contention that he was entitled to a higher disability rating. the board concluded that court and whose case is then remanded to the [board] is a prevailing party under the the board's judgment limiting the knee injury rating and remanded the claim to the va. james b. peake, m.d., secretary of veterans affairs, in an order dated october 13, 2005, the veterans court granted the parties' joint decisions that had either dismissed appeals for lack of jurisdiction (when the appealed united states court of appeals for the federal circuit menicucci v. ins, 132 f.3d 493, 495 (9th cir. 1997) (concluding that the appellant could former employees, the remand must be based on an administrative error in order for respondent-appellee. underlying separate claims are "intimately connected", the interests of jurisdiction of that action, unless the court finds that the position of the 2007-7148 6 harris, the court explained, involved a claim that the veterans court was without judgment limiting the knee injury disability rating to 20% and remanding the claim to the ___________________________ 2007-7148 10 denied a claim for "an increased rating for anxiety neurosis with depressive features," nicholson, 475 f.3d 1360, 1364 (fed. cir. 2007) (citing kelly, 463 f.3d at 1354 n.***). sounding in tort), including proceedings for judicial review of agency appealed from: united states court of appeals for veterans claims administrative error and did not confer prevailing party status. 336 f.3d 1351, 1360 randolph s. gurley, the [joint motion to remand]." id. under these circumstances, the veterans court motion for remand, requesting that the veterans court vacate that portion of its would have a "significant impact" upon another, and that impact in turn however, we "may not review (a) a challenge to a factual determination, or (b) a motion that suggests that the board erred in failing to remand that claim to the va from the record do confer prevailing party status," and "[t]he same result follows if the 2007-7148 9 (fed. cir. 2005) (finding that parties did not obtain prevailing party status because the more." j.a. at 32. in the same opinion, the board addressed additional issues directed found that the remand "was warranted for compliance with harris, for the specifically of appeals for veterans claims ("veterans court") denying his application for attorneys' v. i over gurley's claim. that left "consideration of judicial economy as the sole basis for a decision on one claim "meaningless" and would be a "waste of judicial resources." id. u.s.c. 7292(d)(1); halpern v. principi, 384 f.3d 1297, 1300 (fed. cir. 2004). incurred during a period of hospitalization in 1997, was proximately due to or was the separately addressed the greater than 20% rating question as to the knee injury, but immigration appeals). the veterans court. in his opening brief, gurley argued that the board should not have success on the merits." id. at 1366.1 the board declined to reach the merits of either of the latter two claims and remanded kenneth m. carpenter, carpenter, chartered, of topeka, kansas, argued for disorder." id. at 181. the veterans court determined that because the two claims were the civil action for purposes of eaja, and prevailing party status must be determined consider such claims simultaneously. rather, gurley relied on several veterans court mere fact that the remand was by agreement does not bar a finding of prevailing party [a] court shall award to a prevailing party other than the united states fees prevailing party status requires "some relief on the merits." buckhannon bd. & district court does not confer prevailing party status on the appellant under the civil a prevailing party in his `civil action,' not whether he ultimately prevails on his service the joint motion itself makes clear that the veterans court remanded the claim however, when "the trial court retains jurisdiction, the claimant is a prevailing party only if it succeeds before the agency." former employees, 336 f.3d at the four corners of the remand order." 475 f.3d at 1365. (fed. cir. 2003). in vaughn, we also found that a remand based on a change in law courts for further proceedings do not constitute relief on the merits or confer prevailing on individual unemployability due to service-connected disability ("tdiu"). that is, he prevailing party status where the remand is not predicated on an administrative error. in to gurley's claim for increased compensation that were separate from, but related to, economy and avoidance of piecemeal litigation." id. at 1372.


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