Veteranclaims’s Blog

August 10, 2018

Winters v. Wilkie, No. 2017-1815(Decided: August 10, 2018); Equal Access to Justice Act (“EAJA”); 28 U.S.C. § 2412(d); prevailing party; Gurley v. Peake, 528 F.3d 1322, 1326 (Fed. Cir. 2008); administrative error;

Excerpt from decision below:

“On several occasions the Supreme Court has addressed the requirements to be considered a “prevailing party” under various fee-shifting provisions. See, e.g., CRST Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642(2016); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). The Court has explained that “the ‘touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties,’” and that the “change must be marked by ‘judicial imprimatur.’” CRST, 136 S. Ct. at 1646 (first quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989);
then quoting Buckhannon, 532 U.S. at 605). The Court has “interpret[ed] the term [‘prevailing party’] in a consistent manner” across “various fee-shifting statutes,” id., and we have thus applied its guidance correspondingly, see, e.g., Robinson, 891 F.3d at 980–82; Former Emps. of
Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1364 (Fed. Cir. 2003).
Most recently, the Supreme Court held that “a favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed” in a case involving the fee-shifting provision of Title VII of the Civil Rights
Act of 1964. CRST, 136 S. Ct. at 1646. We have recognized that the Court, in so holding, “noted the asymmetry in the parties’ litigation objectives, which affects the
WINTERS v. WILKIE 7
showing that each party must make to achieve prevailing party status.” Robinson, 891 F.3d at 982 (citing CRST, 136 S. Ct. at 1651). The Court explained that while a plaintiff “seeks a material alteration in the legal relationship between the parties” and must achieve such an alteration to prevail, the defendant merely “seeks to prevent this alteration” and thus prevails “whenever the plaintiff’s challenge is rebuffed.” CRST, 136 S. Ct. at
1651. We have applied the Supreme Court’s guidance in CRST in the EAJA context. See Robinson, 891 F.3d at 982, 985–86.
Applying the Supreme Court’s pre-CRST decisions in the context of court review of administrative agencies, we have held that to be a “prevailing party” a plaintiff “must ‘receive at least some relief on the merits,’ which ‘alters the legal relationship of the parties.’” Motorola, 336 F.3d at 1364 (internal citations and alterations omitted) (quoting Buckhannon, 532 U.S. at 603, 605). In that context,1 we have held that:
where the plaintiff secures a remand requiring
further agency proceedings because of alleged error
by the agency, the plaintiff qualifies as a prevailing
party (1) without regard to the outcome of
the agency proceedings where there has been no
retention of jurisdiction by the court, or (2) when
1 Typically, “remands by the courts of appeals to
district courts for further proceedings do not constitute
relief on the merits or confer prevailing party status on
the successful party.” Gurley v. Peake, 528 F.3d 1322,
1326 (Fed. Cir. 2008). “Remands to administrative agencies are, however, different. The court proceeding is treated as a separate proceeding from the administrative proceeding, and a remand may constitute the securing of relief on the merits.” Motorola, 336 F.3d at 1365.
WINTERS 8 v. WILKIE
successful in the remand proceedings where there has been a retention of jurisdiction. Id. at 1366.”

======================

” In the absence of “a judicial finding of administrative error or a concession of such error by the agency, the default rule is that the remand is not based on administrative error for EAJA purposes,” and “the burden [is] on the EAJA applicant to prove . . . that the remand had to have been predicated on administrative error even though the remand order does not say so.” Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007).”

=========================

United States Court of Appeals for the Federal Circuit
______________________
REGINA WINTERS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1815
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2879, Senior Judge William A.
Moorman.
______________________
Decided: August 10, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., L. MISHA PREHEIM; Y. KEN LEE, BRANDON A. JONAS,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
WINTERS 2 v. WILKIE
Before LOURIE, CHEN, and STOLL, Circuit Judges.
LOURIE, Circuit Judge.
Regina Winters (“Winters”) appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying her application for attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). See Winters v.
Shulkin, No. 14-2879(E), 2017 WL 604119 (Vet. App. Feb.
15, 2017) (“EAJA Decision”). Because the Veterans Court
did not err in determining that Winters is not a “prevailing
party” under EAJA, we affirm.
BACKGROUND
Winters is the surviving spouse of deceased veteran
Arthur L. Winters. Arthur Winters served on active duty
in the U.S. Army from November 1940 to September 1945
during World War II. He was a prisoner of war of the
German government for approximately 25 months.
During his lifetime, he was service-connected for several
disabilities, and had claims pending before the United
States Department of Veterans Affairs (“VA”) when he
died in December 2011. Following his death, Winters
continued to pursue his pending claims as a substituted
claimant and her own claims for accrued benefits as his
surviving spouse.
On June 3, 2013, the Board of Veterans’ Appeals (“the
Board”) granted some of Winters’s substituted claims for
service-connected benefits and denied others (“2013 Board
decision”). Specifically, the Board denied entitlement to
(1) service connection for left arm fracture, kidney condition,
and malnutrition residuals; (2) an earlier effective
date for a 20% disability rating and for an increased
disability rating for residuals of a right brachial artery
aneurysm; and (3) entitlement to ratings in excess of 10%
for service-connected right and left lower extremity cold
WINTERS v. WILKIE 3
injury residuals. The Board granted Winters’s claims for
service-connected benefits for residuals of a right arm
fracture and hypertension for substitution purposes. The
Board found that these service-connected awards were
inextricably intertwined with Winters’s accrued benefits
claim. The Board thus remanded the claims to the Regional
Office (“RO”) to assign initial disability ratings for
the service-connected conditions and to readjudicate the
accrued-benefits claim.
On August 9, 2013, Winters submitted a letter to the
VA arguing that earlier effective dates should have been
awarded for the veteran’s service-connected cold injury
residuals and aid and attendance award (“August 2013
letter”). Under the Veterans Court’s decision in Ratliff v.
Shinseki, such a filing within the 120-day period to file a
notice of appeal at the Veterans Court “abates finality of
the Board decision for purposes of appealing to the [Veterans]
Court until” certain additional actions are taken by
the VA. 26 Vet. App. 356, 360 (2013).
In an undated note in her file, the Board determined
that the August 2013 letter “d[id] not constitute [a] motion
for revision of [the 2013] Board decision” and directed
referral of the matters raised in the letter to the RO. J.A.
119. The Board, however, did not notify Winters of the
determination that her letter did not constitute a motion
for reconsideration. J.A. 190. Because of this lack of
notice, under Ratliff, the 120-day period to appeal the
2013 Board decision to the Veterans Court did not start to
run and the finality of the decision remained abated. See
26 Vet. App. at 360–61.
On July 24, 2014, the Board denied Winters’s claim
for entitlement to an earlier effective date for an award of
special monthly compensation (“SMC”) for substitution
purposes and denied her claim for accrued benefits (“2014
Board decision”). Winters appealed to the Veterans Court
and challenged both the 2013 and 2014 Board decisions.
WINTERS 4 v. WILKIE
On March 31, 2016, the Veterans Court dismissed the
appeal of the 2013 Board decision for lack of jurisdiction
and vacated and remanded the 2014 Board decision “for
readjudication consistent with [its] decision.” Winters v.
McDonald, No. 14-2879, 2016 WL 1275079, at *9 (Vet.
App. Mar. 31, 2016) (“Remand Decision”). In briefing
before the court, the Secretary conceded that the Board
did not provide notice to Winters regarding whether her
August 2013 letter constituted a motion for reconsideration.
The Veterans Court explained:
Given the Secretary’s concession that the Board
did not comply with the procedures outlined in
Ratliff, supra, the Court agrees that the Board’s
July 24, 2014, adjudication of [Winters’s] claims
was premature. To the extent [Winters’s] attempts
to appeal the abated Board decision rendered
on June 3, 2013, the Court does not have
jurisdiction over that decision because it is not final.
However, as VA has yet to address [Winters’s]
potential disagreement with the June 3,
2013, decision regarding her substituted claims
and those claims may affect her accrued-benefits
claim as well as the date of the veteran’s eligibility
for SMC, the Court finds that the resolution of
[Winters’s] disagreement with the Board’s June 3,
2013, decision is inextricably intertwined with the
issues decided by the Board in the July 24, 2014,
decision timely appealed to this Court. See Henderson
v. West, 12 Vet. App. 11, 20 (1998) (where a
decision on one issue would have a significant impact
upon another, and that impact could render
any review by this Court of the decision on the
other claim meaningless and a waste of judicial
resources, the two claims are inextricably intertwined).
Accordingly, the Court will vacate the
Board’s decision and remand the matters for reconsideration
consistent with this decision.
WINTERS v. WILKIE 5
Id. at *8 (first and second internal citations omitted)
(emphases added).
Winters subsequently sought attorney fees and expenses
pursuant to EAJA relating to the Veterans Court’s
March 31, 2016 decision. The Veterans Court dismissed
in part and denied in part her application. With respect
to the 2013 Board decision, the Veterans Court dismissed
the EAJA application because it lacked jurisdiction to
award EAJA fees relating to an appeal over which it did
not have jurisdiction. The Veterans Court denied the
EAJA application in connection with the appeal from the
2014 Board decision because Winters was not a “prevailing
party.” The court held that because no administrative
error for purposes of EAJA occurred with respect to the
2014 Board decision, Winters had not demonstrated she
was a prevailing party.
Winters timely appealed from the EAJA Decision. We
have jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited. Martin v. O’Rourke, 891 F.3d 1338, 1342 (Fed.
Cir. 2018). We have jurisdiction to “decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1). Except to
the extent that an appeal presents a constitutional issue,
however, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
We review the Veterans Court’s interpretation of EAJA
without deference, but may not review its application of
EAJA to the facts of a particular case. Thompson v.
Shinseki, 682 F.3d 1377, 1380 (Fed. Cir. 2012). The EAJA
applicant bears the burden of proving he or she is a
prevailing party. Robinson v. O’Rourke, 891 F.3d 976, 980
(Fed. Cir. 2018).
WINTERS 6 v. WILKIE
EAJA provides in relevant part:
a court shall award to a prevailing party other
than the United States fees and other expenses
. . . incurred by that party in any civil action (other
than cases sounding in tort), including proceedings
for judicial review of agency action . . . unless
the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).
On several occasions the Supreme Court has addressed
the requirements to be considered a “prevailing
party” under various fee-shifting provisions. See, e.g.,
CRST Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642
(2016); Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598 (2001). The
Court has explained that “the ‘touchstone of the prevailing
party inquiry must be the material alteration of the
legal relationship of the parties,’” and that the “change
must be marked by ‘judicial imprimatur.’” CRST, 136 S.
Ct. at 1646 (first quoting Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989);
then quoting Buckhannon, 532 U.S. at 605). The Court
has “interpret[ed] the term [‘prevailing party’] in a consistent
manner” across “various fee-shifting statutes,” id.,
and we have thus applied its guidance correspondingly,
see, e.g., Robinson, 891 F.3d at 980–82; Former Emps. of
Motorola Ceramic Prods. v. United States, 336 F.3d 1360,
1364 (Fed. Cir. 2003).
Most recently, the Supreme Court held that “a favorable
ruling on the merits is not a necessary predicate to
find that a defendant has prevailed” in a case involving
the fee-shifting provision of Title VII of the Civil Rights
Act of 1964. CRST, 136 S. Ct. at 1646. We have recognized
that the Court, in so holding, “noted the asymmetry
in the parties’ litigation objectives, which affects the
WINTERS v. WILKIE 7
showing that each party must make to achieve prevailing party
status.” Robinson, 891 F.3d at 982 (citing CRST,
136 S. Ct. at 1651). The Court explained that while a
plaintiff “seeks a material alteration in the legal relationship
between the parties” and must achieve such an
alteration to prevail, the defendant merely “seeks to
prevent this alteration” and thus prevails “whenever the
plaintiff’s challenge is rebuffed.” CRST, 136 S. Ct. at
1651. We have applied the Supreme Court’s guidance in
CRST in the EAJA context. See Robinson, 891 F.3d at
982, 985–86.
Applying the Supreme Court’s pre-CRST decisions in
the context of court review of administrative agencies, we
have held that to be a “prevailing party” a plaintiff “must
‘receive at least some relief on the merits,’ which ‘alters
the legal relationship of the parties.’” Motorola, 336 F.3d
at 1364 (internal citations and alterations omitted) (quoting
Buckhannon, 532 U.S. at 603, 605). In that context,1
we have held that:
where the plaintiff secures a remand requiring
further agency proceedings because of alleged error
by the agency, the plaintiff qualifies as a prevailing
party (1) without regard to the outcome of
the agency proceedings where there has been no
retention of jurisdiction by the court, or (2) when
1 Typically, “remands by the courts of appeals to
district courts for further proceedings do not constitute
relief on the merits or confer prevailing party status on
the successful party.” Gurley v. Peake, 528 F.3d 1322,
1326 (Fed. Cir. 2008). “Remands to administrative agencies
are, however, different. The court proceeding is
treated as a separate proceeding from the administrative
proceeding, and a remand may constitute the securing of
relief on the merits.” Motorola, 336 F.3d at 1365.
WINTERS 8 v. WILKIE
successful in the remand proceedings where there
has been a retention of jurisdiction.
Id. at 1366. In the absence of “a judicial finding of administrative
error or a concession of such error by the agency, the default rule is that the remand is not based on administrative error for EAJA purposes,” and “the burden [is] on the EAJA applicant to prove . . . that the remand had to have been predicated on administrative error even
though the remand order does not say so.” Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007).
Here, because the Veterans Court ordered further
agency proceedings and did not retain jurisdiction, Remand
Decision, 2016 WL 1275079, at *9, the sole issue for
our consideration is whether the remand was predicated
either explicitly or implicitly on agency error. See Davis,
475 F.3d at 1364. Whether the Veterans Court’s remand
decision was predicated on administrative error for purposes
of EAJA is a legal issue we review de novo. Robinson,
891 F.3d at 979.
Winters argues that the Veterans Court erred in determining
that she was not a prevailing party with respect
to her appeal of the 2014 Board decision under
EAJA. Winters contends that the Veterans Court applied
an incorrect legal standard for determining prevailing
party status with respect to the 2014 Board decision.2
According to Winters, the remand of the 2014 Board
decision “was not ‘solely’ based on the interest of judicial
economy,” but rather “on a judicial determination that the
Board’s 2014 decision was premature, and thus in error,
in light of Mrs. Winters’s assertion that the Board’s 2013
decision was not final.” Reply Br. 10.
2 Winters does not argue entitlement to EAJA fees
on appeal based on the Veterans Court’s dismissal of the
2013 Board decision.
WINTERS v. WILKIE 9
The government responds that the Veterans Court did
not err in determining that Winters was not a prevailing
party. The government argues that the Veterans Court
remanded the 2014 Board decision solely in the interest of
judicial economy and, therefore, correctly concluded that
Winters was not a prevailing party. See Gurley, 528 F.3d
at 1328; Eady v. Shinseki, 321 F. App’x 971, 975 (Fed. Cir.
2009) (per curiam). The government contends that the
Secretary did not concede agency error with respect to the
lack of Ratliff notice.
We agree with the government that the Veterans
Court correctly concluded that Winters is not a prevailing
party under EAJA. As Winters concedes, “the Veterans
Court did not make an explicit finding of agency error.”
Reply Br. 14. Winters instead relies on allegedly implicitly
recognized error based principally on the Veterans
Court’s statement that “[g]iven the Secretary’s concession
that the Board did not comply with the procedures outlined
in Ratliff, supra, the Court agrees that the Board’s
July 24, 2014, adjudication of [Winters’s] claims was
premature.” Remand Decision, 2016 WL 1275079, at *8
(emphases added). However, neither the Secretary’s
“concession” with respect to Ratliff notice, nor the use of
the word “premature” “clearly indicates that [Winters’s]
remand was based on agency error,” and it was her burden
to prove “that the remand had to have been predicated
on administrative error even though the remand order
does not say so.” Davis, 475 F.3d at 1366.
We reject Winters’s argument that the failure to provide
notice under Ratliff was an administrative error.
Ratliff sets forth notice and finality requirements for
Board decisions to determine timeliness of appeals to the
Veterans Court where the claimant has filed a written
disagreement with the Board’s decision. Under Ratliff, if
the “Board determines that the written disagreement
does not constitute a motion for Board reconsideration,
the Secretary must notify the claimant that the Board
WINTERS 10 v. WILKIE
decision, as of the date of notification to the claimant, is
now deemed final and that the claimant has a new 120–
day appeal period beginning with the date of the mailing
of the notification.” 26 Vet. App. at 361.
Applying Ratliff here, the Veterans Court concluded
that it lacked jurisdiction over Winters’s appeal of the
2013 Board decision because of “the Secretary’s concession
that the Board did not comply with the procedures
outlined in Ratliff.” Remand Decision, 2016 WL 1275079,
at *8. This “concession,” however, was of a factual matter
relevant only to the court’s jurisdiction, not of an administrative
error with respect to the appealed decision. Indeed,
Winters has not identified a timing or other
requirement that the VA allegedly violated by not having
provided notice under Ratliff prior to her appeal to the
Veterans Court. Thus, even assuming arguendo that an
administrative error with respect to one Board decision
could support prevailing party status with respect to an
appeal from another Board decision, the Secretary’s
Ratliff notice “concession” is not an administrative error
that can support a prevailing party determination in this
case.
Similarly, the fact that the Veterans Court referred to
the 2014 Board decision as “premature” does not compel a
finding of administrative error. See Eady, 321 F. App’x at
975 (affirming determination that appellant was not a
prevailing party under EAJA and explaining that “[t]he
use of the word ‘error,’ however, is not talismanic”).
Winters has cited no authority requiring the Board to
decide the issues presented in the 2013 and 2014 Board
decisions together, and we are aware of none. Indeed, the
Veterans Court’s precedent appears to be to the contrary.
See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en
banc) (holding Veterans Court has jurisdiction “over a
Board decision that denied a claim if that claim is ‘inextricably
intertwined’ with another claim that the Board
remanded . . . but may decline to exercise its jurisdiction
WINTERS v. WILKIE 11
in such cases, as we frequently do”), aff’d, 631 F.3d 1380
(Fed. Cir. 2011), judgment vacated and remanded on other
grounds, 565 U.S. 802 (2011), and vacated and remanded
on other grounds, 467 F. App’x 889 (Fed. Cir. 2012), and
modified on other grounds, 26 Vet. App. 31 (2012).
Rather, the Veterans Court’s opinion refers to the
2014 Board decision as “premature” based solely on
considerations of judicial economy. The decision does not
discuss the merits of Winters’s claims. See EAJA Decision,
2017 WL 604119, at *3. Citing its decision in Henderson,
the Veterans Court determined that the issues in
the non-final 2013 Board decision over which it lacked
jurisdiction and the 2014 Board decision were “inextricably
intertwined” and remanded the 2014 Board decision
on that basis. Id.; Remand Decision, 2016 WL 1275079,
at *8 (citing Henderson, 12 Vet. App. at 20). We have
previously recognized that the Veterans Court in Henderson
remanded decisions to the Board “based on notions of
finality and judicial economy,” and held that such remands
do not confer prevailing party status under EAJA.
Gurley, 528 F.3d at 1328 (first citing Henderson, 12 Vet.
App. at 20; then citing Bagwell v. Brown, 9 Vet. App. 337,
339–40 (1996)); see also Eady, 321 F. App’x at 975
(“Gurley stands for the proposition that a remand order
based on the interest of judicial economy is not a remand
predicated on agency error, and that proposition applies
here, notwithstanding the Veterans Court’s use of the
word ‘erroneous.’”). Accordingly, the remand of the 2014
Board decision “based on the interest of judicial economy
is not a remand predicated on agency error.” Robinson,
891 F.3d at 983.
Winters’s reliance on our decision in Dover v. McDonald,
818 F.3d 1316 (Fed. Cir. 2016) is misplaced. In
Dover, “the parties agree[d] that the remand was necessitated
by agency error, and the remanding court did not
retain jurisdiction. The disputed issue [was] only whether
the remand call[ed] for further agency proceedings within
WINTERS 12 v. WILKIE
the meaning of Motorola.” Id. at 1319. In contrast, the
parties here dispute whether agency error necessitated
the remand. As discussed above, Winters has failed to
meet her burden to establish that the remand was predicated
on agency error.
Winters is also not a prevailing party when we apply
the Supreme Court’s guidance in CRST. CRST did not
change the requirement that a plaintiff must achieve a
“material alteration in the legal relationship between the
parties” in order to be considered a prevailing party. 136
S. Ct. at 1651; see also Robinson, 891 F.3d at 985–86.
Here, the Veterans Court merely afforded Winters an
opportunity to have her otherwise finally denied claims
reconsidered by the Board in light of related non-final
claims that “may affect” them. Remand Decision, 2016
WL 1275079, at *8. Winters has not demonstrated a
material alteration in the legal relationship of the parties
based on this discretionary vacatur and remand predicated
solely on the interest of judicial economy with no
discussion directed to the merits of the claims. See Robinson,
891 F.3d at 985 (applying CRST and affirming determination
that appellant was not a prevailing party
under EAJA where “the remand reflects the Veterans
Court’s discretionary decision to allow a waived argument
to proceed”). As we have previously observed, “[a] boxer
thrown out of the ring and then allowed back in to continue
the fight has not prevailed.” Akers v. Nicholson, 409
F.3d 1356, 1360 (Fed. Cir. 2005).
We have considered Winters’s remaining arguments
but find them to be unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the Veterans
Court’s denial of attorney fees and expenses pursuant to
EAJA.
AFFIRMED

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