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.
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 Jo Baunach||U.S Department of Justice|