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Veteran's Beneficiaries Awarded Attorney Fees Against VA

Gordon v. Peake, 22 Vet.App. 265 (C.A. Vet., Nov. 21, 2008)

Edward Gordon, a military veteran, purchased a $10,000 National Service Life Insurance (“NSLI”) policy in September 1943. After Gordon’s death in 1995, his daughter Beth Gordon Samargin filed a claim for the proceeds of the NSLI policy on behalf of her minor children. One month later, Gordon’s other daughter Karen Gordon also filed a claim on behalf of her two children for a portion of the NSLI policy proceeds. The VA regional office (“RO”) determined that according to Gordon’s 1992 beneficiary designation, the proceeds of the NSLI policy were payable only to Samargin.

Karen appealed to the Board of Veterans Appeals, where her claim for half the NSLI policy was granted. On appeal by Beth and remand, the Board then held that Karen's children were not beneficiaries. On reconsideration for the applicability of the Veterans Claims Assistance Act of 2000 (“VCAA”), the Board issued yet another decision that there was clear evidence that Gordon intended to change his written beneficiaries, but no evidence that there was any overt act to effectuate that intent, so that the policy proceeds belonged to Beth's daughters.

However, the Board also held that Karen was entitled to VCAA notice as to information and evidence necessary to support her claim, which the Secretary did not give (the Secretary contended Karen and her daughters were not beneficiaries and thus not entitled to such notice). On appeal of this ruling by the Secretary, the Court of Appeals for Veterans Claims agreed that the failure to give Karen the VCAA notice was error, and that the error was prejudicial. Karen filed an application for attorney’s fees and expenses to be paid by the VA under the Equal Access to Justice Act (“EAJA”).

The Court of Appeals for Veterans Claims noted that Karen clearly satisfied three of the four EAJA requirements; the remaining issue was whether or not the position of the Secretary was substantially justified. The Secretary’s position was: 1) a NSLI beneficiary claimant is not a claimant within the meaning of §5103(a); and 2) that Karen was adequately notified in any event.

Concerning the first argument, the Court found that it was clearly contrary to what Congress had intended, which was that a “claimant for VCAA purposes include an individual seeking proceeds of a deceased veteran’s NSLI policy.” The Court noted that this conclusion was consistent with its rulings in previous cases and that the question was not complex or even “in need of substantial interpretation.” Accordingly, the Court held that the Secretary’s position was not substantially justified.

The Court also rejected the Secretary’s second position, that Gordon had received notice and any notice error was not prejudicial. The Secretary’s argument was identical to an administrative position the Court previously held to not be substantially justified in Gordon v. Nicholson, 21 Vet. App. 270 (Vet. App. 2007). As for the Secretary’s argument that Gordon had actual knowledge as to the evidence needed to support her claim, the Court found no evidence in the record to support this position.

The Court of Appeals awarded Gordon $9,189 on her EAJA application.


 

 

Judge(s): Schoelen
Related Categories: Civil Procedure , Civil Remedies
 
Appellant Lawyer(s) Appellant Law Firm(s)
Glenn R. Bergmann Bergmann & Moore, LLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Randall Campbell Veterans Affairs
Edward Cassidy Veterans Affairs
Tim McClain Veterans Affairs
Cristine Senseman Veterans Affairs

 

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a dissenting opinion may not be a decisive factor, it is nonetheless a factor that the majority fails to extended eaja well beyond litigation to which the united states was a party. after substantially justified. with regard to the issue of prejudicial error, the court in its merits decision arguments made by the government that are eventually rejected by the court. stillwell, 6 vet.app. benefits under chapter 53 because an applicant for waiver of overpayment is not seeking benefits discretion in the award of attorney fees under the eaja."). moreover, it is ms. gordon's burden to eaja, waiving the united states' sovereign immunity and general statutoryimmunity to fee awards in a matter before the court, and of the action or failure to act by the va in a matter vcaa and anynotice error was not prejudicial because she had actual knowledge of the information of action congress intended to be covered under eaja. "concerned that the government, with its a litigating position of the government exercised through the secretary. to the extent that the 535 u.s. 789, 803 n.12 (2002). rather, "it authorizes fees payable from the successful party's rests on the premise that a party who chooses to litigate an issue against the the court rejected the secretary's argument, concluding that the secretary's interpretation rights. schoelen, judge: this case is before the court on the appellant's september 5, 2007, it "shall not prevent an award of fees and other expenses under section 2412(d)." fcaa 506(c), and allow reasonable fees for the attorneys of the successful party or parties . . . not to exceed 10[%] eaja award because his net worth does not exceed $2,000,000; (3) an allegation that the position 25, 27 (1951), and not '[enlarged] . . . beyond what the language required.'" id. at 685-86 (quoting here, as to the secretary's administrative position, the board found that the secretary sent when later amendingit. and, anydoubt must be resolved in favor of nonapplicability eaja liability to purely adjudicative entities. although the wording of the act also be brought in federal district court, a distinctlyadversarial forum." gordon, 21 vet.app. at 286 3 property and avoid multiple liability. see fed. r. civ. p. 22. if the court were to hold that eaja does not apply in this matter, it would not be alone in dep't of hous. and urban dev., 939 f.3d 586 (1991) (citing alyeska pipeline serv. in perry, the united states court of appeals for the first circuit addressed the question of on the legal issues, and the evolving case law." secretary's reply at 10-11. 38 u.s.c. 2412(d)(1)(a), (1)(b), (2)(b); scarborough v. principi, 541 u.s. 401, 407-08 (2004). (2007) (citing good samaritan hosp. v. shalala, 508 u.s. 402, 409 (quoting chevron u.s.a., of the secretary was not substantially justified; and (4) an itemized fee statement. see united states court of appeals for veterans claims authorityto narrow the waiver that congress intended.'")(quotingunited states v. kubrick, 444 u.s. to research and prepare a supplemental brief in response to the court's request for additional briefing refining and formulating public policy. an adjudication or civil action health review commission)], might ever be held to suffer a fee award under eaja." the . . . disallowance of claims for insurance benefits."). here, it is the board's october 17, 2002, lack of judicial precedent adverse to the government's position does not preclude a fee under the the question of whether section 2412(d)(1)(a) applies in the context of nsli proceedings is one of statutory interpretation. "statutory interpretation begins with the language of the statute on june 28, 2001, the secretary moved, unopposed, to remand the matter for consideration of the found that there was no evidence in the record to support the secretary's argument that the appellant eaja award, the court still must determine what is a 'reasonable' fee."); see also "claim" without any analysis, as it did in the merits decision. in fact, the majority fails to cite to a that there is little, if any, pubic policy to be refined by nsli litigation. opposed by the secretary."); chesser v. west, 11 vet.app. 497, 501 (1998) ("the court has wide recovery." id. at 802. accordingly, the decision of the majority creates a nonsensical situation 435, 439 (2004) (holding vcaa does not apply to claims for waiver of overpayment of pension disability benefits under the total disability insurance provision of the appellant's nsli policy); languageofsection 2412(d)(1)(a), in this context an award ofattorney's fees would be inappropriate. evaluating whether congress has directly spoken to the question at issue, the starting point is to never have been liable for such fees if the case had been brought in federal district court. "unlike james b. peake, m.d. all, if eaja was designed to ameliorate adjudicators' excesses, then reason dictates not authorize the prevailing party to recover fees from the losing party. see gisbrecht v. barnhart, government is not only representing his or her own vested interest but is also statute] should be construed in connection with every other part or section so as to produce a meaning of a statute is discernible, that plain meaning must be given effect.'" (quoting secretary," finding that such a distinction had "no basis in the statutorylanguage of section 5103(a)." once an eaja applicant alleges that the secretary's position lacked substantial justification, unreasonable adjudicatory action; elsewise, we would expect congress to have 7 agreements had been entered into pursuant to section 5904(d)(1). 16 an award pursuant to eaja will necessarily be implicated, regardless of the fact that the underlying although mayfield was decided after the board decision in this case, the court agrees with under the laws administered by the secretary." id. at 277-78. the court found that the "statute failure of ms. gordon's prior attorney to comply with these court's rules and will not be approved appellant." id. the court held that the board erred when it relied on a variety of postdecisional did not have a duty to provide ms. gordon with anysection 5103(a) notice. alternatively, he argued beth gordon samargin, intervenor. demarest v. manspeaker, 498 u.s. 184 (1991))). private parties where the government is merely a stakeholder. allegation that the petitioner is a prevailing party; (2) a showing that he is a party eligible for an 6 vet.app. 291, 302 (1994), this court announced a test for evaluating whether va's position was there are a number of factors that have a bearing upon the reasonableness of the va's proceeds of the nsli policy. see 38 u.s.c. 38 c.f.r. 20.101 (a) (14) (2008) (noting that the an issue of first impression. he states that the court should find his litigation position substantially "ms. gordon never received any notice directed to satisfying the requirements of section 5103(a)." 11.7 hours were spent preparing and reviewing it and the underlying claims file, without any benefits under part ii ("general benefits") or iii ("readjusted and related arguably, the secretary will also have to provide ms. samargin with similar notice. see gordon, the 30-day eaja application period set forth in 28 u.s.c. 2412(d)(1)(b). it also satisfies the arguments either at the administrative and litigation levels. on the basis of the foregoing analysis, if congress had truly intended va to exercise concurrent jurisdiction over nsli claims, it is highly 1207, 1211 (fed. cir. 2007) (quoting mcentee v. mspb, 404 f.3d 1320, 1328 (fed. cir. 2005)). "in reply at 5 (arguing that "[b]ecause the court's remand was not based solely on the intervening thesecretaryargues that his litigation position was substantiallyjustified because this caseinvolved d.c., for the appellee. insurance[,] business." however, he fails to note that nsli is not private insurance, but was, in fact, the majority disagrees with the dissent that the secretary is a "neutral stakeholder" in nsli substantial justification shall be determined on the basis of the law in existence at the time that the this leads me to the belief that the effect of this holding may be to end the adjudication of additionally, eaja a. substantial justification 2412(d)(1)(a), the court should conclude that an award pursuant to eaja is not appropriate in the involves a common fund or confers a substantial benefit on an ascertainable group." johnson v. u.s. nsli context. see ardestani v. ins, 502 u.s. 129, 137 (1991) ("once congress has waived matter. see felton, 7 vet.app. at 282 (citing marcus v. shalala, 17 f.3d 1033, 1038 (7th cir. 1994) substantiallyjustified. see ozer v. principi, 16 vet.app. 475, 479 (2002). the court concludes that i.e., entitlement to proceeds under the nslipolicy. there will not normallybe anybroadlyreaching appellant was not prejudiced by the va's failure to provide her with section 5103(a) notice. adverse party, as intended by congress. "that a plaintiff has prevailed against one party does not comes before this court, seeks review of an adverse board decision denying her claim. she has the proceeds of the nslipolicywere payable to aline and kristiana in accordance with the veteran's how the parties will be able to defeat each other's claims on remand rather than with how to defeat than an adversaryand awarding eaja fees in this case would be the equivalent of ordering a federal of this court. bethea v. derwinski, 2 vet.app. 252, 254 (1992) (panel decisions constitute binding 5103(b). id. at 279-80. the court held that if the secretarywere correct, that section 5103(a) notice the date of award of service connection). tallman v. brown, 7 vet.app. 453, 460 (1995))); smith v. derwinski, 2 vet.app. 429, 431 (1992) with regard to changes in the law. the time spent on the reply and supplemental briefs is plausibly of the eaja's applicability is the party against whom the adversarial dispute lies. as noted above, attorney's fees from a losing partyabsent express statutoryauthorityor bad faith unless the litigation co. v. wilderness soc'y, 421 u.s. 240, 247 (1975)). 48 (1999), which was issued subsequent to the january 1999 board decision. r. at 192-96. except in rare and exceptional circumstances.'" (second alteration in original) (quoting congressionally imposed notice requirements for nsli claims itself a public policy issue. that congress did not have adjudicatory functions in mind when enacting eaja or secretary is merely a stakeholder. may show that the policy or factual foundation underlying an agency rule is bases, yet 26.7 hours were spent in its preparation, without sufficient explanation for the more than such claims in the va system. under 38 u.s.c. 1984(a), the secretary has the power to remove parties. id. at 539. the first circuit then reasoned: 28 u.s.c. 2412(d)(2)(f). here, theappellant's september 2007 eaja application was filed within insures the legitimacy and fairness of the law. an adjudication, for example, 21 vet.app. at 289 (lance, j., dissenting). thus, the scope of the majority opinion deals more with applicabilityof theveterans claimsassistanceact of2000(vcaa), pub. l. no. 106-475, 114 stat. before other courts. health administration)] promulgates safety and health standards for businesses" and "it is the disputes between two parties over the proceeds of an nsli policy. see, e.g., lee v. west, 13 federal sovereign immunity must be construed narrowly; consequently, the government's immunity 12 vet.app. 388 (2000) (involving a claim for an earlier effective date for the payment of monthly certain types of 'benefits.'" id. at 278. the court refused "to draw the distinction urged by the 475, 479 (2002) to support its contention that "a dissent in the underlying merits decision" "is not statute" and "made little sense" and by the "strong disapproval" of relevant regulations by several judging reasonableness during the administrative proceedings, the court looks to the relevant, public policyimplications because, as noted above, the government's interest in the matter is merely clearly applies to any benefit that a claimant seeks and makes no distinction that would exclude judgment." no provision extends the eaja umbrella to cover the provision of section 1984 as in september 1943, veteran edward e. gordon purchased a $10,000 national service life section 5103(b)(2) provides that the one-year time limit within which a claimant has to1 single case where the secretary's position was found to be not substantially justified after a divided 106 stat. at 4513. however, "when an attorney receives fees under both a qualifying fee agreement provides a concrete, adversarial test of government regulation and thereby substance or in the main that is, justified to a degree that could satisfy a reasonable person." i would also note that the mccarran-ferguson act provides that "the continued regulation6 cases before this court may involve issues of first impression containing good faith the court nevertheless may only award reasonable fees and expenses. 28 u.s.c. 2412(d); "set up by congress [for the government] to provide life insurance coverage to members of the since courts are duty bound to construe stingily waivers of the federal government's parties, the court remanded this appeal to the board for consideration of fagan v. west, 13 vet.app. had paid under the fee agreement." shaw v. gober, 10 vet.app. 498, 503 (1997) (citing determines that the secretary ignored existing law. see johnson (leamon) v. principi, 17 vet.app. litigation position that va did not have duty to provide ms. gordon with any section 5103(a) notice 6 vet.app. at 302; see also bowey v. west, 218 f.3d 1373, 1376-77 (fed. cir. 2000) (holding that district court judge to pay a party's legal fees after a decision is reversed on appeal. provide nsli beneficiary claimants with section 5103(a) notice. gordon v. nicholson, the petitioner's application for attorney fees and expenses is granted in part, in the amount to va and which information and evidence that the va would attempt to obtain on behalf of the substantiate her nsli beneficiary claim." appellant's reply br. at 5. thus, contrary to the see sweitzer v. brown, 5 vet. app. 503, 505 (1993); see also gardner v. derwinski, 1 vet. app. 584, issue is beyond the scope of the issues currently before the panel. (citing young v. derwinski, 1 vet.app. 70, 72 (1990) (holding that section 1984 jurisdiction is not cannot be overridden except where a plain congressional intent to do so can be shown."). as the id. accordingly, the court held that "while there is a difference in the nature of the 'benefits' flowing issue or dispute involves the secretary only in a nominal capacity. [w]e have been able to find no clear indication of a congressional intent to extend "neutral stakeholder." gordon v. nicholson, 21 vet.app. 270, 283 (2007) (lance, j., dissenting). the same kind of billing judgment that an attorney would use in preparing a billing statement for a the appellant that the secretary reads the court's opinion in this case too narrowly. see appellant's 'benefits' within the meaning of section 5100. " id. weighs in favor of concluding that an award of eaja fees and expenses in this context is minefield of being required to simultaneously advise both sides as to how to defeat each other's to the board for the purpose of having the court consider the effect of the vcaa on the appellant's on appeal to the court, the secretary argued that because the vcaa does not apply to nsli at both the administrative and litigation stages of the matter. see locher v. brown, 9 vet.app. that private litigants battling with each other should be able to recover attorneys' fees id. (emphasis added). the court further held that "nothing in the record relied upon by the board and va. gordon, 21 vet.app. at 277. the secretary attempted to make a distinction between number of hours expended are reasonable). that a "claimant" within the meaning of section 5100 includes a person applying for or seeking the court is mindful that there was a dissent in the underlying merits decision. see gordon, 2096, in accordance with this court's decision in holliday v. principi, 14 vet.app. 280 (2001). (1985) (refusing to hold that a suit against a government official in his or her personal capacity can "broughtagainst the government" within the meaningof the eaja. see28 u.s.c. 2412(d)(1)(a).4 eaja requires that the civil action for which fees are sought be "brought against the united "government insurance claims." government adopted its position); bonny v. principi, 18 vet.app. 218, 221 (2004) (stating that "in it will not affect government policy nor the public fisc. see in re perry, 882 f.2d 534, 539-40 secretary's argument, the court's decision in this case was not based solely on the board's unlawful the adequacy of the vcaa notice is identical to its administrative position that the court has held v. cassidy, jr., deputy assistant general counsel; and christine d. senseman, all of washington, demonstrate the reasonableness of her request for fees and other expenses. see blum v. stenson, benefits") of title 38. gordon, 21 vet.app. at 278; see also lueras v.principi, 18 vet.app. action must be one "byor against the united states," 28 u.s.c. 2412(d)(1)(a)--is, inappropriate. dissent cites in re perry, 882 f.2d 534, 539-40 (1st cir. 1989), for its language that eaja is not the u.s. supreme court's statements that the government policies were "manifestly contrary to 15 ("[w]hen a reviewing court 'find[s] the terms of a statute unambiguous, judicial inquiry is complete supra; baldridge v. nicholson, 19 vet.app. 227, 238 (2005) ("'[t]he adversary should not be b. reasonableness of fee taxation of such business by the several states." 15 u.s.c. 1011. in passing this act, congress reliance on postdecisional documents. given the totality of circumstances, the court finds that the meaning of section 5100, because the proceeds of the nsli policy are not "benefits" within the section 1984, that eaja was not intended to apply to attorneys fees and costs stemming from in this instance, the $103.43 claimed for copying, faxing, postage, and phone calls is presents routine arguments as to the adequacy of notice and the board's statement of reasons or eaja was intended to apply only to claims against the government and not to disputes between though the claim itself is the same.7 of $9,189.38. in its decision, the board further concluded that va had provided the appellant with erroneous or inaccurate, or it may provide a vehicle for developing or such actions to federal district court through a bill of interpleader once it becomes apparent that one final strike against awarding eaja fees in this matter is that the government would and the routine nature of the issues, 6 hours to review and identify the issues is plausibly reasonable our dissenting colleague argues that the eaja would not be applicable to this case if the4 contention is that because the legal dispute in the nsli proceedings before va is one between the secretarycan beviewed as an "adjudicator" between competing claims for insurance proceeds,perry id. at 545. the court also observed that its merits decision was consistent with other decisions issued inc. v. natural res. def. council, inc., 467 u.s. 837, 842 (1984))). "'[e]ach part or section [of a interpreting or applying section 2412 in cases involving section 1984 in the district courts. rather, va had informed the appellant "which information and evidence that the appellant was to provide purpose, it is unfair to ask them to finance through their tax dollars 13 this interpretation. as noted above, in a dispute arising over nsli proceeds, the secretary is tasked decision regarding the appellant's nsli beneficiary claim that is subject to judicial scrutiny. the did not have a "reasonable basis in law and fact" and was not substantially justified. ms. gordon's appeal of the october 17, 2002, board decision to this court is not a civil action and the eaja for the same work, the eaja fees go first to reimburse the client for what he or she 465 u.s. 886, 897 (1984) (stating that the appellant bears the burden of demonstrating that the administrative and litigation positions. one such factor is the evolution of va benefits law, which v. service life insurance act of 1940, 54 stat. 1008. however, our dissenting colleague's main position is inconsistent with the board's october 2002 decision here on appeal and the position that party may recover eaja fees for actions brought before this court, not what is or is not permitted to the veteran and his beneficiary, . . . both [the] veteran and beneficiary are 'claimants' seeking secretary to provide her with notice of how to defeat ms. samargin's claim to the proceeds. it correct, that is, if it has a reasonable basis in law and fact." id. at 566 n.2. in stillwell v. brown, and the overall structure of the statute."), aff'd sub nom. gardner v. brown, 5 f.3d 1456 (fed. cir. by the court regarding the vcaa and the proper construction of the word "claimant" as used in the both on the merits and the fee proceeding -- onto a proceeding that is inherently adversarial may contraindicated bythe factors fordetermining reasonableness itemized in hensley v. eckerhart, 461 exclusive)); see also 38 u.s.c. 1984(a). brief, the 26.7 hours spent in its preparation appear excessive; 15 hours is plausibly reasonable to interpreting them that congress explicitlyintended to make eaja applicable in situations where fee (eaja), 28 u.s.c. 2412(d), for $11,945.79 in attorney fees and $103.43 in expenses for a total of respect to such position, and action or failure to act, as reflected in the record on supra. further, 1.8 hours was spent preparing a response to a show cause order associated with the is generally no civil action "brought against" the government. therefore, based on the plain affect their alleged and respective interests. should an nsliclaimant obtain a remand at this court, three days of work spent in its preparation. in contrast, the reply brief addresses a novel issue raised the court also finds that the secretary's litigation position was not substantially justified. the dissent takes the position that eaja fees maynot be granted in this case, in part, because subject to and regulated by the several states." report of the house judiciary committee on the . . . ."(emphasis added)). in the instant case, the secretary's role in nsli proceedings is that of a substantially justified in the administrative and judicial phases: of the amount recovered and to be paid by the department out of the payments to be made under the case. seeking a portion of the proceeds of the veteran's nsli policy on behalf of her two children (kelin administrative adjudications over nsli proceeds. simply stated, the public fisc is not a treasure although the secretary has not disputed other aspects of ms. gordon's eaja application, clients), r. 1.8 (2007) (conflict of interest: current clients: specific rules); aba model code mayfield v. nicholson, 444 f.3d 1328 (fed. cir. 2006), which held that the board could not rely on 17 dissenting opinion supported the conclusion that the secretary's position was justified. id. while that this error was prejudicial. id. at 280-83. in sum, it is clear, based on the language of 2412(d)(1)(a), the legislative history in relying on postdecisional documents to find vcaa-compliant notice, the court also held that appellant vcaa notice as to the information and evidence necessary to substantiate her claim, and vindicating their rights, simply by threatening them with costly litigation, congress enacted the noted that the nsli benefit program is located in part ii ("general benefits") of title 38. id. in january 2001, the board issued a decision finding that ms. gordon's minor children were agreement . . . , the total fee payable to the agent or attorney may not exceed 20[%] of the total of to inefficient workload management); see also chesser, surpa. the time spent on other matters the court also found that the secretary's argument ignored the plain language of section harmonious whole.'" meeks v. west, 12 vet.app. 352, 354 (1999) (alteration in original) (quoting of judicial conduct canon 3 ("a judge shall perform the duties of a judicial office impartially schoelen, judge, filed the opinion of the court. lance, judge, filed a dissenting a regulation was substantially justified); carpenter, supra (holding that it was not unreasonable for (finding that government's contention that the questions involved were "close" was controverted by 2a n. singer, sutherland on statutory construction 46.05 (5th ed. 1992)); determinative circumstances, including the state of the law at the time of the board decision"); appellant and ms. sarmagin, the purported beneficiary under the policy, the secretary's role in the it is unlikely that congress intended for nsli proceedings to be included under eaja's statutory violated the plain meaning of the statute. the court held that the plain language in section 5100 dispositive factor in the court's consideration of whether the secretary's litigation position was ii. analysis proceedings. a stakeholder is a disinterested third party who holds money or property, the right to insurance (nsli) policy. record (r.) at 17. the veteran died in august 1995. r. at 64. on embrace. the court notes that livesay was decided by this court prior to the court's 2001 remand2 dissenting); cf. aba model rules of prof'l conduct r. 1.7 (2007) (conflict of interest: current had been brought in federal district court should this court extend eaja to the nsli proceeding context. this is so because taxpayer dollars va must demonstrate the reasonableness, in law and fact, of the position of the va ii. the legislative history of eaja no. 03-0181 (e) nonetheless, my primary objection to granting the eaja application in this case is my belief that entitle him to fees from another party, let alone a nonparty." kentucky v. graham, 473 u.s. 159, 168 parties." pierce v. underwood, 487 u.s. 552, 575 (1988) (citing s.rep.no.96-253, at 1-6 (1979)). sovereign immunity. we think, powerful evidence of an intent to exempt "pure" adjudicators from eaja's consider. instead, the majority brushes off the problems raised by construing an nsli dispute as a in cases of first impression the court must determine whether the issue presented "close" fcaa 506(c) does in the case of an ordinary contingencyfee agreement. there is also no caselaw 18 reasonable on its face. however, given the routine issues and arguments presented in the initial 9 veterans who apply for nsli policies and beneficiaries who seek proceeds under the policies. id. h.r. rep. no. 96-1418, at 5 (1980) (emphasis added). "the exception created by [eaja] focuses postdecisional documents to find vcaa- compliant notice, had not yet been issued when the board congress prefaced eaja withastatement purpose: "the bill rests on thepremise that certain ramos v. lamm, 712 f.2d 546, 554 (10th cir. 1983))); see also hensley, 461 u.s. at 434 ("[a]n moore v. gober, 10 vet.app. 436, 440 (1997) (holding the same). pierce v. underwood, 487 u.s. 552, 565 (1988). thus, "a position can be justified even though it essence,congress intended that the federal government take a "hands off" approach to the insurance children, kelin and hunter) and the other purported beneficiary under the policy (ms. samargin on we are hard-pressed to find that this purpose was addressed in any way to that of a disinterested stakeholder. should one claimant prevail over another purported beneficiary,6 will consider whether the hours claimed are (1) unreasonable on their face; (2) otherwise proceed in federal district court. nonetheless, while jurisdiction may be raised at any time, fugere administrative body's role is "purelyadjudicative." id. at 536. the first circuit observed that eaja through counsel, appealed that decision to the court. ms. samargin was not a party to the appeal. not the government. therefore, the secretary, in the context of an nsli proceeding, is not an it appears that the mechanism by which an attorney may be compensated in such situations is surrounding its enactment, and the fee provision governing suits on insurance brought pursuant to governed exclusively by section 1984(g). section 1984(g) is not a fee shifting statute, in that it does oshrc acts as a purely adjudicative entity. however, ms. gordon, like any other claimant who mccarran-ferguson act, s. 340, feb. 13, 1945, 1945 u.s. code congressional service, p. 670. in and hunter). r. at 91-93. on october 20, 1995, the regional office(ro) and insurancecenter issued are 'claimants' within the meaning of section 5100." id. 20 involve "broad reaching public policy implications." assuming arguendo that the eaja is only the proceeds of mr. gordon's nsli policy. as such, her eaja application is permitted by the plain 8 reasonably designed to effectuate his intent to change his beneficiary. r. at 11. waived such immunity. ruckelshaus v. sierra club, 463 u.s. 680, 685 (1983). "waivers of and will be granted. see mcdonald and chesser, both supra; see also hensley and baldridge, both percent of the proceeds if the case is brought in federal district court, but that an attorney can receive in the instant case, the dispute resolved by the court was the scope of the secretary's duty to has often resulted in new, different, or more stringent requirements for adjudication. stillwell, not among the beneficiaries of the veteran's nsli policy. r. at 214-21. in may 2001, ms. gordon, in connection with appeals to the board of veterans ['] appeals involving questions pertaining to 28 u.s.c. 2412(d)(1)(a), (1)(b), and (2)(b); scarborough v. nicholson, 541 u.s. 401 (2004). required to pay for more than the normal time the task should have required.'" (quoting 6 will ultimately be spent funding litigation between two private parties whose outcome will solely lance, judge, dissenting: i must respectfullydissent from the majority's decision to award may file an interpleader suit to have a federal district court determine who should receive the december 1992 beneficiary designation. id. ms. gordon appealed the ro decision. r. at 406. in court's rejection of the secretary's argument as contrary to the plain meaning of the applicable under chapter 51; ratherthe applicant is requesting a waiver of recoveryof indebtedness). the court eaja apply to habeas petitions that are "dedicated to vindicating individual rights based on the accordingly, i must dissent from the majority's conclusion that eaja fees may be awarded in this indicates that ms. gordon was ever adequately informed of what evidence was necessary to the appellant notice that satisfied the vcaa notice requirements. r. at 6. the board concluded that claims, va did not have a duty to provide ms. gordon with any section 5103(a) notice. this proceedings for judicial review of agency action, brought by or against the united states it is not contested that attorneyfees and costs are generally available in cases appealed to the thus, we concluded that "when viewed within the context of title 38, nsli-beneficiary claimants conduct, reasons given, and consistency with judicial precedent and va policy with any past-due benefits awarded on the basis of the claim." where such a fee agreement is entered, immunity canon of construction absent any ambiguity, here both the statutory language and h.r. rep. no. 96-1418, at 10 (1980) (emphasis added). the italicized language demonstrates that unreasonable government action and also bear the costs of vindicating their under 38 u.s.c. 5904(d)(1), "[w]hen a claimant and an agent or attorney have entered into a fee applicable in occupational safety and health review commission (oshrc) cases when the private client."). proceeds accordingly. thus, the secretary's role in this context is more akin to that of an adjudicator is not correct," and should be considered substantially justified "if a reasonable person could think statutory provision in question, as stated by the court in its underlying merits opinion, and the where the government's potential liability for attorney fees depends on the forum chosen even the secretary took in 2001 when he sought a remand of this case so that the board could consider exception. gordon, supra. the court held that "[a]fter examining the plain meaning of sections1 against awarding public funds to fuel a purely private dispute that serves no public purpose. from a federal court or other adjudicative body whenever one of them successfully the secretary's litigation position has no reasonable basis in fact or law and is therefore not january 1999, the board granted ms. gordon's claim for equal shares on behalf of her sons. issued the decision in this case. circuits of the u.s. courts of appeals)). other factors to be considered include whether "the statutory v. eaja would not be applicable if this action before the va, based upon the totality of the circumstances, including merits, 21 vet.app. 270, 275-80 (2007). additionally, the court held that va failed to provide the nsli proceedings is merely that of a neutral stakeholder. for this reason, the dissent argues that3 victory; the court's merits decision did not get her nsli proceeds. rather, it merely instructed the the application of the vcaa to this case. the crux of the secretary's argument in his 2005 brief was primarily on those individuals for whom cost may be a deterrent to vindicating their rights." 586(1991)("determining a statute's plain meaningrequires examining the specific language atissue 38 c.f.r. 8.30 (2008) (noting thattheregulations governingappeals to the board "will be followed 10 is 'exceptional.'" golliday v. brown, 7 vet.app. 249, 255 (1994) (citing stillwell, 6 vet. app. at confusing or in need of substantial interpretation. given the plain meaning and clarity of the a dispositive factor in the court's consideration of whether the secretary's litigating position was precedent unless overturned by en banc opinion of this court or by decision of the u.s. court of sovereign immunity over certain subject matter, the court should be careful not to 'assume the the burden shifts to the secretary to show that the government's position was substantially justified iii. the secretary's role is adjudicatory not adversarial additionally, the record on appeal in the underlying merits case is not large (255 pages), yet federal government out of life insurance regulation to the extent possible supports the proposition there is a dispute over nsli proceeds. by exercising this power, the secretary can -- in effect -- eaja fees in this matter. as an initial note, while the majority cites ozer v. principi, 16 vet.app. of insurance is in the public interest." id. at 672. the fact that congress has explicitly kept the application for an award of attorney fees and expenses pursuant to the equal access to justice act umbrella. a claimant's goal in an nsliproceeding is solelyto protect his or her own vested interest, v. derwinski, 972 f.2d 331, 334 n.5 (fed. cir. 1992), young cannot be overturned by another panel governmental action because of the expense involved in securing the vindication of their rights." statute. for example, in livesay v. principi, 15 vet.app. 165, 170 (en banc), the court recognized2 recapture the sovereign immunity that the majority ignores and free himself from the ethical i also note that it makes very little sense for congress to provide that fees are limited to 107 beneficiary claimant is not a "claimant" within the meaning of 38 u.s.c. 5100 and 5103(a), va requisite eaja "application-content specifications," because it contains the following: (1) an documents to support its conclusion that va had provided the appellant with vcaa-compliant scheme to be considered is complex, or . . . the analysis required, even for a straightforward statute, comm'r, ins v. jean, 496 u.s. 154, 163 (1990). there is no basis to exempt her appeal from the5 fees that might otherwise prevent an individual from challenging unreasonable governmental action. service co. v. chertoff, where the supreme court noted that it did not need to resort to the sovereign id. (emphasis in original). the first circuit concluded: 19 explanation of the need for such time-consumingeffort. given the relativelysmall size of the record questions, and whether the secretary sought an unreasonable interpretation or resolution of the areview ofthe legislative historyof eaja confirms that nsliproceedings werenot thetype individuals . . . may be deterred from seeking review of, or defending against, unreasonable saunders v. brown, 4 vet.app. 320 (1993) (involving a challenge to the statutory requirement that appears reasonable on its face and will be approved in full. accordingly, of the $11,945.79 claimed, opinion. section 2412(d)(2)(f) to add the court to eaja's definition of "court"); see generally i. background noted that "[f]rom its beginning, the business of insurance has been regarded as a local matter, to be states." see 28 u.s.c. 2412(d)(1)(a) ("[a] court shall award to a prevailing party other than the chest to be used to fund purely private litigation in which the government claims no stake. broadly defines "claimant" as an "individual applying for, or submitting a claim for, any benefit 4 this court has jurisdiction to award reasonable attorney fees and expenses pursuant to court where an appellant otherwise meets the requirements for such an award. see federal courts 535, 537 (1996). the court must determine whether the government's position was "justified in while distinguishable, is nonetheless instructive with regard to eaja awards when the id. at p.10. as with the plain language of the statute, the legislative history makes clear that the crux secretary's administrative position was not reasonable in law or fact. found that therewas clear and convincingevidenceoftheveteran's intent to change his beneficiaries. the plain meaning of which we derive from its text and its structure." myore v. nicholson, 489 f.3d "under the american rule, each party pays its own attorney's fees; a prevailing party cannot recover section 1984(g), in contrast,provides,inpertinent part, that the district court "shall determine applicant for eaja fees must treat the government as though it were a private client by exercising 436(2004)(holding that secretary'spositionat the administrative level in promulgatingand applying that the appellant was adequately notified of her rights under the vcaa and any notice error was the statutoryquestion involved was not a complex or close one, or that the statutory provisions were statutory provisions, the court concludes that, based on the totality of circumstances, the secretary's provide evidence to the secretary after section 5103(a) notice is provided does not apply to 21 vet.app. at 283-90 (lance, j., dissenting). however, the court concludes that this is not a iv. conclusion thetraditional nonadversarial claims that thesecretaryadjudicates, disputesovernsliproceedsmay the secretary not to have foreseen court's expansion of 38 u.s.c. 1318 caselaw). however, "[a] the government is immune from claims for attorneys fees, except to the extent that it has that a person claiming to be a beneficiary under an nsli policy is not a "claimant" within the 16 vet.app. at 489-99 (rejecting reimbursement for time spent on motions for extended time due r. at 237-41. on september 26, 2001, the court granted the secretary's motion. r. at 236. the secretary also argued that the appellant was adequately notified of her rights under the legislative history are sufficiently ambiguous that it would be appropriate for the court to employ application for service disabled veterans insurance, a form of nsli, be made within two years after board has jurisdiction to decide matters arising under the national service life insurance program); constitution rather than refining rules and policy")). notice. gordon, 21 vet.app. at 282. the secretary argues that his administrative position was assist purported nslibeneficiaries under section 5103(a). appellant gordon won onlya procedural ussery v. brown, 10 vet.app. 51, 53 (1997) ("once it is determined that a claimant is entitled to an 1458, 1459 (9th cir.1988)). result in all these matters being driven to the adversarial forum better suited for actions where the underlying action had been brought in federal district court pursuant to 38 u.s.c. 1984 (2008). the sovereign immunity canon. 128 s.ct. 2007, 2019 (2008). narrowly construing section e. transp. co. v. united states, 272 u.s. 675, 686 (1927)). unlike richlin security panel decision or to present any useful framework for deciding when to discount a dissent. at 302-03; carpenter v. west, 12 vet.app. 316, 320 (1999). arguments presented in a case of first such a stakeholder, who is uncertain as to which of the competing parties is entitled to the property, decision in mayfield, but, rather, on the secretary's failure to provide adequate notice, mayfield does 111, 118 (1979)); perry, 882 f.2d at 544 ("[s]tatutes which, like eaja, constitute a surrender of vast resources, could force citizens into acquiescing to adverse government action, rather than united states fees and other expenses . . . incurred by that party in any civil action . . ., including secretary of veterans affairs, appellee. behalf of her minor children, aline and kristiana). id. at 273. in such an nsli proceeding, there 1993), aff'd, 513 u.s. 115 (1994); johnson v. brown, 9 vet.app. 369, 371 (1996) ("[i]f 'the plain impression are more likely to be considered substantially justified than those where the court claims before acting as a neutral adjudicator. see gordon, 21 vet.app. at 289 (lance, j., immunitymust be 'construed strictly in favor of the sovereign,' mcmahon v. united states, 342 u.s. challenged a board decision that she considers unreasonable in an effort to vindicate her rights to and creating a limited exception to the 'american rule' against awarding attorneys fees to prevailing award of proceeds available under the policy. conversely, the public fisc will be adversely affected pay benefits, the board is the decisionmaker, determining which of the parties is entitled to the claims, the dissent does not take into account that nsli proceedings do not necessarily involve lead to imposition of fee liability pursuant to 42 u.s.c. 1988) (citing hensley v. eckerhart, the proceeds of his nsli policy on behalf of her minor children (aline and kristiana). r. at 63. on justified"[g]iven thesophisticatednatureof the issues involved, the legitimate differences of opinion eaja. u.s. 424, 430 n.3 (1983), or ussery v. brown, 10 vet.app. 51, 53 (1997); or (3) persuasively 2 appeal and the filings of the parties before the court. oshrc . . . which is given the task of 'carrying out adjudicatory functions under [title 29],'" perry, not prejudicial. the court rejected the secretary's argument and held that va was obligated to 5100, and 5103, it is clear that congress intended that a 'claimant for vcaa purposes includes an in an nsli dispute because the remedy will be uniquely tailored to that individual claimant; i.e., an was designed to encourage parties to vindicate their rights against the government, not other private otherwise stated, the taxpayer is generally unaffected by which claimant ultimately prevails was not substantially justified. for the reasons discussed earlier in this decision, the court finds that appeals for the federal circuit or u.s. supreme court). accordingly, further discussion of this (1st cir. 1989) (noting that "petitioners' suit did not -- indeed, could not-- assist in refining and because the response was due, at a minimum, to attorney representation issues. cf. hensley, vcaa-compliant notice. on appeal to the court, the appellant argued that va failed to fulfill its (decided november 21, 2008) tims.mcclain, general counsel;r.randallcampbell,assistant general counsel;edward business declaring that "the continued regulation and taxation by the several states of the business who choose to use the va system would not end up paying more to their attorneys than those who finds that there was no reasonable basis in fact or law to support the secretary's argument that the which is disputed between two or more parties. blacks law dictionary 823, 1412 (7th ed. 1999). ms. gordon was not a party to the appeal. in february 2000, pursuant to a joint motion of the had actual knowledge of the evidence and information to submit in support of her claim. the court before kasold, lance, and schoelen, judges. reasonable because "the bva was following the law and deemed that appellant had adequate notice however, it concluded that there was no evidence that the veteran had performed an overt act applicable in such cases, we note that the underlying precedential opinion resolves the issue of 303); see also pottgieser v. kizer, 906 f.2d 1319, 1324 (9th cir. 1990) (same). id. language of the eaja statute and is consistent with its purpose of removing the obstacle of attorney and diligently."). accordingly, the majority's attempt to awkwardly graft nonadversarial rules -- research and prepare the initial brief, and this will be awarded. see mcdonald and chesser, both the dissent also argues that eaja should not apply to nsli cases because they do not5 iv. sovereign immunity formulating public policy, an important consideration in assessing eaja's reach") (comparing september 11, 1995, the intervenor, beth gordon samargin, the veteran's daughter, filed a claim for 5 assuming arguendo this is correct, it nevertheless is inapposite. the issue is whether a prevailing by the secretary, and it was researched and briefed in 13.2 hours. similarly, it took about 7 hours boudin v. thomas, 732 f.2d 1107, 1114 (2nd cir. 1984) (stating that congress did not intend that on appeal from the board of veterans' appeals seems to leave thequestion open, thelegislative purpose and historystronglysuggest curtis v. brown, 8 vet.app. 104, 108-109 (1995)). it is clear from both the statutes and the caselaw with resolving any controversy that arises between alleged beneficiaries, and he must assign the he argues that "congress intended that the federal government take a 'hands off' approach to the meaningof the statute and instead are merelyproceeds,resultingfromacontract between the veteran notice obligations under 38 u.s.c. 5103(a). the secretary countered that because an nsli substantially justified," ozer did not rest on those grounds. the court in ozer found that the and opportunities to participate effectively in her appeal." secretary's response at 16. in this vein, contend that the act sweeps so broadly. the requirement of partystatus-that the civil karen gordon, appellant, unlike a "neutral stakeholder" who sits back and awaits a decision directing to whom it must "whether a purely adjudicative governmental entity, like oshrc [(the occupational safety and did not apply to nsli beneficiary claims, there would be no need for the section 5103(b)(2) in taking the position that eaja does not apply to appeals to this court involving nsli3 glenn r. bergmann, of bethesda, maryland, for the appellant. dispute in this matter is not comparable to any in which eaja fees are available, the court must err 20 percent of the proceeds if the matter is litigated through va. this incongruity suggests that the probable that it would have gone to some effort to harmonize the fee provisions so that beneficiaries vi. conclusion october 13, 1995, appellant karen gordon, another one of the veteran's daughters, filed a claim individual seeking the proceeds of a deceased veteran's nsli policy." gordon, 21 vet.app. at 280. in essence, the legal dispute here was one between the appellant (ms. gordon on behalf of her two united states military forces." young v. derwinski, 1 vet.app. 70, 71(1990); see also national silence on the part of the congress shall not be construed to impose any barrier to the regulation or claim. i. the plain language of the eaja statute mcdonald v. nicholson, 21 vet.app. 257, 263 (2007) ("in determining reasonableness, the court $9,085.95 will be approved for 61 hours at the claimed rate of $148.95 per hour. in this matter, the court holds that the secretary was not substantially justified in his 882 f.2d at 535. recognizing "that the secretary, through osha [(the occupational safety and eaja." felton v. brown, 7 vet.app. 276, 281 (1994) (quoting ramon-sepulveda v. ins, 863 f.2d or evidence that she needed to submit in support of her claim. the secretary's litigation position on and taxation by the several states of the business of insurance is in the public interest, and that announcing more precise rules . . . . where parties are serving a public administration act of 1992 (fcaa), pub. l. no. 102-572, 106 stat. 4513 (oct. 29, 1992) (amending r. at 172-79. ms. samargin appealed the january 1999 board decision to this court. r. at 180-82. not render the board's position substantially justified"). in addition to holding that the board erred examine the language and structure of the statute itself." sursely v. peake, 22 vet.app. 21, 24 461 u.s. 424 (1983)). $12,049.22. for the reasons set forth below, the court will grant in part the eaja application. the adversarial nature of disputes arising over nsliproceeds pertains to the purported beneficiaries; on october 17, 2002, the board issued the decision here on appeal. r. at 1-12. the board appeals an unreasonable order or mindless decision. yet, even petitioners do not reasonable on its face. however, the claimed 80.2 hours of attorney work is not. the initial brief 11 an administrative decision that disallowed ms. gordon's claim. r. at 95. the ro determined that the secretary notes that the decision of the u.s. court of appeals for the federal circuit in court was incorrect in its decision that va has jurisdiction over such disputes. see young, supra. 14


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