Robinson v. O'Rourke , 891 F.3d 976 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
BENNIE C. ROBINSON,
Claimant-Appellant
v.
PETER O’ROURKE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2110
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-619, Judge Robert N. Davis.
______________________
Decided: May 31, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
AARON WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; CHRISTOPHER O.
ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
2 ROBINSON v. O’ROURKE
Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Opinion concurring-in-part and dissenting-in-part filed by
Circuit Judge NEWMAN.
O’MALLEY, Circuit Judge.
Veteran Bennie C. Robinson appeals the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his application for attorney
fees under the Equal Access to Justice Act (“EAJA”). See
Robinson v. McDonald, No. 14-0619 E, 2016 WL 703041
(Vet. App. Feb. 23, 2016) (“Fees Decision”). Robinson
contends that he is entitled to fees because he prevailed
before the Veterans Court when it set aside a disability
rating decision of the Board of Veterans’ Appeals
(“Board”) and remanded for the Board to consider argu-
ments that Robinson made for the first time on appeal.
Robinson v. McDonald, No. 14-0619, 2015 WL 2448037
(Vet. App. May 22, 2015) (“Remand Decision”).
We hold that, because the Veterans Court’s remand
was not predicated on administrative error by the Board
and did not materially alter the legal relationship of the
parties, Robinson was not a “prevailing party” within the
meaning of the EAJA, and is therefore not entitled to
attorney fees. Accordingly, we affirm.
BACKGROUND
Robinson is a veteran of the United States Marine
Corps and served in Vietnam from 1966 to 1969. Follow-
ing his military service, Robinson began experiencing
coronary problems and sought treatment at a Department
of Veterans Affairs (“VA”) medical facility. In February
2006, and again in November 2006, a VA cardiologist
recommended that he undergo certain medical testing.
The tests were not performed, however, until fourteen
ROBINSON v. O’ROURKE 3
months later, on April 2, 2007. They revealed that Robin-
son suffered from left ventricular diastolic dysfunction.
Robinson filed a claim with the VA for disability bene-
fits for his cardiac condition. As relevant here, the VA
granted Robinson a 60% disability rating effective April 2,
2007, the date he underwent cardiac testing. The Board
affirmed, denying Robinson entitlement to a higher
rating.
On appeal to the Veterans Court, Robinson argued for
the first time—through the same counsel that represented
him before the Board—that his disability rating should
have been assigned an effective date in February 2006,
when his doctor first ordered tests, rather than April
2007, when those tests were performed. The government
opposed, arguing that Robinson did not present this
argument to the Board and therefore failed to exhaust his
administrative remedies with respect to that issue. The
government also noted that the record was unclear as to
whether the VA or Robinson caused the fourteen-month
delay in scheduling the medical tests.
“[B]alancing the competing interests at stake,” the
Veterans Court exercised its discretion not to apply issue
exhaustion, and permitted Robinson to make his belated
argument. Remand Decision, 2015 WL 2448037, at *2
(citing Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)).
The court did not identify any error committed by the
Board but “set aside” its decision and remanded for it to
address Robinson’s argument “in the first instance and
make the relevant findings of fact.” Id. at *1–2. In so
ruling, the Veterans Court stated that Robinson was “free
to submit additional argument and evidence as to the
4 ROBINSON v. O’ROURKE
remanded matter.” Id. at *2. The parties agree that the
Veterans Court did not retain jurisdiction. 1
Robinson thereafter filed an application for attorney
fees, arguing that, because he secured remand from the
Veterans Court, he was a prevailing party within the
meaning of the EAJA. The court denied Robinson’s
application. Fees Decision, 2016 WL 703041, at *1.
Although the court acknowledged that a remand to the
Board could confer prevailing-party status in some cir-
cumstances, the court determined that its particular
remand decision did not confer such status on Robinson
because it “was not predicated on administrative error by
the Board,” and was for the sole purpose of allowing the
Board to consider an issue raised for the first time on
1 On remand, the Board ultimately rejected Robin-
son’s claim to an earlier effective date, and the Veterans
Court affirmed. See Appellant Letter (Apr. 6, 2017), Dkt.
40-1. But, because the Veterans Court did not retain
jurisdiction, the ultimate outcome of the agency proceed-
ing is irrelevant to whether Robinson is considered a
prevailing party for purposes of the EAJA. See Former
Emps. of Motorola Ceramic Prods. v. United States, 336
F.3d 1360, 1366 (Fed. Cir. 2003) (“[W]here the plaintiff
secures a remand requiring further agency proceedings
because of alleged error by the agency, the plaintiff quali-
fies as a prevailing party (1) without regard to the outcome
of the agency proceedings where there has been no reten-
tion of jurisdiction by the court, or (2) when successful in
the remand proceedings where there has been a retention
of jurisdiction.” (emphasis added)); see also Kelly v. Ni-
cholson, 463 F.3d 1349, 1354 (Fed. Cir. 2006) (“In award-
ing attorneys’ fees and expenses under EAJA, the inquiry
is whether [the veteran] was a prevailing party in his
‘civil action,’ not whether he ultimately prevails on his
service connection claim.”).
ROBINSON v. O’ROURKE 5
appeal. Id. The court therefore determined that its
remand “does not, by itself, confer prevailing party sta-
tus.” Id. (citing Gordon v. Principi, 17 Vet. App. 221
(2003)). Robinson timely appealed that decision to this
court.
DISCUSSION
Before addressing the merits of Robinson’s appeal, we
first address the parties’ jurisdictional dispute.
I. Jurisdiction
“This court’s jurisdiction to review decisions by the
Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). We “shall decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1); see id.
§ 7292(a); see also Halpern v. Principi, 384 F.3d 1297,
1300 (Fed. Cir. 2004). Absent 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.” 38 U.S.C
§ 7292(d)(2). Of course, “where adoption of a particular
legal standard dictates the outcome of a case based on
undisputed facts, we may address that issue as a question
of law.” Kelly v. Nicholson, 463 F.3d 1349, 1352–53 (Fed.
Cir. 2006) (internal quotation marks omitted).
The government argues that we lack jurisdiction over
this appeal insofar as it requires us to review the Veter-
ans Court’s factual determination that its remand was not
predicated on administrative error. We disagree. We
plainly have jurisdiction to “interpret[] . . . statutory
provisions,” 38 U.S.C. § 7292(d)(1), which includes the
EAJA. The issue of whether the Veterans Court’s remand
decision was predicated on administrative error for pur-
poses of the EAJA, moreover, is a legal issue that falls
squarely within our jurisdiction. See Thompson v.
Shinseki, 682 F.3d 1377, 1382 (Fed. Cir. 2012) (“[W]e may
6 ROBINSON v. O’ROURKE
address as a question of law Mr. Thompson’s contention
that a remand based upon Clemons necessarily must have
been predicated on administrative error.”); Gurley v.
Peake, 528 F.3d 1322, 1326 (Fed. Cir. 2008) (“The ques-
tion of whether Gurley is a prevailing party in this con-
text is a legal question which we review de novo.”); Kelly,
463 F.3d at 1352–53.
Thus, while we are not at liberty to review the Veter-
ans Court’s factual determinations or application of law to
the facts, Thompson, 682 F.3d at 1382, we have jurisdic-
tion to review the Veterans Court’s interpretation of the
EAJA. We turn now to the merits of Robinson’s appeal.
II. Robinson Is Not a Prevailing Party
The only substantive issue on appeal is whether the
Veterans Court’s remand conferred prevailing-party
status on Robinson. That issue presents a question of law
that we review de novo. Davis v. Nicholson, 475 F.3d
1360, 1363 (Fed. Cir. 2007). Robinson, as the EAJA
applicant, carries the burden of proving he is a prevailing
party. Id. at 1366.
For the reasons stated below, Robinson has not satis-
fied his burden, as he has not shown that the court’s
remand was predicated on administrative error or that it
materially altered the legal relationship of the parties.
A. Legal Principles
The EAJA is a fee-shifting statute that allows a party
who prevails in a civil action brought by or against the
government to recover attorney fees and costs. The
statute provides that
a court shall award to a prevailing party other
than the United States fees and other expens-
es[] . . . incurred by that party in any civil ac-
tion . . . unless the court finds that the position of
ROBINSON v. O’ROURKE 7
the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The “essential objective” of the
EAJA is to remove deterrents “from seeking review of, or
defending against, unjustified governmental action be-
cause of the expense involved.” Kelly, 463 F.3d at 1353
(internal quotation marks omitted). This objective is
particularly salient in the veterans context, “which is
intended to be uniquely pro-claimant.” Id.
By its terms, the statute applies only to a “prevailing
party.” 28 U.S.C. § 2412(d)(1)(A). In Buckhannon Board
& Care Home, Inc. v. West Virginia Department of Health
& Human Resources, 532 U.S. 598 (2001), the Supreme
Court held, in the context of interpreting a fee-shifting
provision in the Fair Housing Amendments Act of 1988,
that a prevailing party is one who receives “at least some
relief on the merits of his claim.” Id. at 603 (internal
quotation marks omitted); Davis, 475 F.3d at 1363 (“A
party prevails in a civil action if he receives ‘at least some
relief on the merits of his claim.’” (quoting Buckhannon,
532 U.S. at 603–04)). The Court noted, however, that not
every type or quantum of relief will suffice. Instead, the
Court stated that the relief requires a “material alteration
of the legal relationship of the parties.” Buckhannon, 532
U.S. at 604 (internal quotation marks omitted); Former
Emps. of Motorola Ceramic Prods. v. United States, 336
F.3d 1360, 1364 (Fed. Cir. 2003). Thus, the Court noted
that, while judgments on the merits and consent decrees
generally confer prevailing-party status, minimal relief
resembling an interlocutory ruling that reverses a dismis-
sal for failure to state a claim generally does not. Buck-
hannon, 532 U.S. at 604–05; Dover v. McDonald, 818 F.3d
1316, 1318 (Fed. Cir. 2016).
Applying the rule set forth in Buckhannon, we have
held that remand to an administrative agency for further
proceedings can provide the requisite relief required to
8 ROBINSON v. O’ROURKE
confer prevailing-party status, but only if the remand is
predicated—either explicitly or implicitly—on administra-
tive error. 2 See, e.g., Ward v. U.S. Postal Serv., 672 F.3d
1294, 1299 (Fed. Cir. 2012) (per curiam) (“[W]e have held
that remands not rooted in agency error do not result in
prevailing party status.”); Gurley, 528 F.3d at 1327
(“[T]he remand must be based on an administrative error
in order for the appellant to qualify as a prevailing par-
ty.”); Davis, 475 F.3d at 1364 (“In order for Davis to
prevail on this argument, we must conclude that the
Remand Order was either explicitly or implicitly predicat-
ed on administrative error.”); Eady v. Shinseki, 321 F.
App’x 971, 974 (Fed. Cir. 2009) (per curiam) (“In order for
the party to be considered ‘prevailing,’ the remand order
must have been either explicitly or implicitly predicated
on administrative error.” (internal quotation marks
omitted)).
We have stated, moreover, that, “[w]here there has
been a remand to an administrative agency without 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.” Davis, 475 F.3d at 1366 (emphases added).
“This default rule places the burden on the EAJA appli-
cant to prove, based on the record, that the remand had to
have been predicated on administrative error even though
the remand order does not say so.” Id.
2 Although remand to a federal district court for
further proceedings is not typically considered relief on
the merits, remand to an administrative agency is unique
because “[a]n appeal of an agency decision is treated as a
separate proceeding from the administrative proceeding”
itself. Dover, 818 F.3d at 1319 (internal quotation marks
omitted).
ROBINSON v. O’ROURKE 9
While briefing in this appeal was pending, the Su-
preme Court issued a decision clarifying Buckhannon’s
rule. In CRST Van Expedited, Inc. v. Equal Employment
Opportunity Commission, 136 S. Ct. 1642 (2016), the
Court addressed a fee-shifting provision in Title VII of the
Civil Rights Act of 1964 and held that “a defendant need
not obtain a favorable judgment on the merits in order to
be a ‘prevailing party.’” Id. at 1651. The Court reiterated
that the “touchstone” of the prevailing-party inquiry is
whether there has been a “material alteration of the legal
relationship of the parties.” Id. at 1646 (internal quota-
tion marks omitted). This alteration, the Court stated,
“must be marked by ‘judicial imprimatur.’” Id. (quoting
Buckhannon, 532 U.S. at 605). In so holding, the Court
noted that a defendant “may prevail even if the court’s
final judgment rejects the plaintiff’s claim for a nonmerits
reason” because the defendant fulfills its “primary objec-
tive whenever the plaintiff’s challenge is rebuffed, irre-
spective of the precise reason for the court’s decision.” Id.
at 1651.
Although we have not yet applied CRST’s guidance in
the EAJA context, we have applied that guidance in the
patent context. In Raniere v. Microsoft Corp., 887 F.3d
1298 (Fed. Cir. 2018), we held that a district court’s
dismissal of the patentee’s infringement suit, with preju-
dice, for lack of standing conferred prevailing-party status
on the defendants under 35 U.S.C. § 285. Id. at 1303–09.
In that context, we explained that, although a judgment
on the merits is sufficient to confer prevailing-party
status, it is not necessary. Id. at 1306–07 (citing CRST,
136 S. Ct. at 1646, 1651).
We noted, moreover, that the phrase “prevailing par-
ty” in the Patent Act’s fee-shifting provision should be
interpreted consistently with the Court’s interpretation in
CRST, notwithstanding that the Court was interpreting a
different statute in that case. Id. at 1305. Indeed, the
Supreme Court stated in CRST that “Congress has in-
10 ROBINSON v. O’ROURKE
cluded the term ‘prevailing party’ in various fee-shifting
statutes, and it has been the Court’s approach to interpret
the term in a consistent manner” across those statutes.
CRST, 136 S. Ct. at 1646 (citing Buckhannon, 532 U.S. at
602–03 & n.4); see Buckhannon, 532 U.S. at 602 (“Con-
gress[] . . . has authorized the award of attorney’s fees to
the ‘prevailing party’ in numerous statutes in addition to
those at issue here[] . . . .”); Hensley v. Eckerhart, 461 U.S.
424, 433 n.7 (1983) (holding that interpretation of “pre-
vailing party” in a case involving the Civil Rights Attor-
ney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, is
“generally applicable in all cases in which Congress has
authorized an award of fees to a ‘prevailing party’”); see
also Raniere, 887 F.3d at 1306 (“We hold CRST applies to
our analysis of prevailing-party status under § 285, and
that defendants need not prevail on the merits to be
classified as a ‘prevailing party.’”); Wood v. Burwell, 837
F.3d 969, 973 (9th Cir. 2016) (applying CRST to EAJA fee
shifting).
Neither CRST nor Raniere, however, dealt with re-
mand to an agency as a basis for finding prevailing-party
status, as here. Both cases, moreover, involved defend-
ants—rather than plaintiffs—who purported to have
prevailed. In CRST, the Court noted the asymmetry in
the parties’ litigation objectives, which affects the show-
ing that each party must make to achieve prevailing-
party status. Whereas a plaintiff “seeks a material alter-
ation in the legal relationship between the parties” and
prevails only when it effects such an alteration in the first
instance, the defendant merely “seeks to prevent this
alteration” and therefore prevails “whenever the plain-
tiff’s challenge is rebuffed, irrespective of the precise
reason for the court’s decision.” CRST, 136 S. Ct. at 1651.
For these reasons, it is unclear whether, in the wake
of CRST, we must reconsider or clarify our precedent
requiring administrative error in cases of remand for
further agency proceedings. We need not resolve that
ROBINSON v. O’ROURKE 11
issue here, however. 3 Robinson is not a prevailing party
under either our precedent or the guidance set forth in
CRST. As explained in more detail below, the Veterans
Court’s decision in this case was not predicated on admin-
istrative error, and it likewise did not materially alter the
legal relationship of the parties as contemplated by
CRST.
B. The Veterans Court’s Remand Decision Is
Not Predicated on Administrative Error
The remand at issue was not predicated on adminis-
trative error. The Veterans Court did not address the
merits of Robinson’s appeal, much less identify any error
committed by the Board below. Nor could it, as Robinson
did not argue that he was entitled to an earlier effective
date before the Board. Instead, the Veterans Court
considered Robinson’s belated argument, and remanded
for the Board to make factual findings related to that
issue in the first instance. In other words, the remand
required the Board to consider an argument that it could
3 We note, however, that our “administrative error”
precedent likely is not inconsistent with CRST. Even
under our current precedent, prevailing-party status may
be conferred on a claimant who has secured remand
where the agency erred on procedural or jurisdictional
grounds, and not just substantive grounds. See Dover,
818 F.3d at 1319–20 (finding that the claimant was a
prevailing party where “the Veterans Court vacated on
procedural grounds” and remanded to “clear[] a procedur-
al hurdle (i.e., an adverse ruling on the merits with preju-
dice) so that [she] could pursue additional proceedings on
the merits”); see also Wood, 837 F.3d at 971–75 (finding
plaintiffs to be prevailing parties based on remand to
agency predicated on a violation of the Administrative
Procedure Act, and plaintiffs challenged the agency
determination on that ground).
12 ROBINSON v. O’ROURKE
not have considered previously, through no fault of its
own.
That the Veterans Court “set aside” the Board’s rating
decision does not compel a different conclusion. This “set
aside” language cannot fairly be read to suggest that the
court passed judgment on the Board’s decision. See Eady,
321 F. App’x at 975 (rejecting the argument that, “because
the Veterans Court characterized the Board’s decision as
‘erroneous,’ the court’s remand order was necessarily
predicated on the recognition of agency error”). Instead, it
reflects the fact that vacatur was required to allow the
Board to make factual findings that the Veterans Court,
as an appellate tribunal, could not itself make in the first
instance. See Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013) (“The Court of Appeals for Veterans
Claims, as part of its clear error review, must review the
Board’s weighing of the evidence; it may not weigh any
evidence itself. As we have recognized, the statute pro-
hibits the court from making factual findings in the first
instance.” (citing Andre v. Principi, 301 F.3d 1354, 1362
(Fed. Cir. 2002)).
Nor could the Veterans Court’s remand decision be
read to implicitly identify error by the Board. As a gen-
eral matter, “the Veterans Court has authority to remand
cases to the Board for further proceedings for further
consideration of legal issues or for clarification of facts
underlying a legal issue,” and administrative error there-
fore cannot be inferred from remand, generally. Davis,
475 F.3d at 1364. Further, in concluding that remand
was appropriate here, the Veterans Court decided not to
apply issue exhaustion, which, we have emphasized, “is
generally a matter of judicial discretion.” Bozeman v.
McDonald, 814 F.3d 1354, 1357 (Fed. Cir. 2016); Maggitt,
202 F.3d at 1377 (“While the Veterans Court may hear
legal arguments raised for the first time with regard to a
claim that is properly before the court, it is not compelled
to do so in every instance.”). And, as the Veterans Court
ROBINSON v. O’ROURKE 13
noted, that discretion involves “balancing the competing
interests at stake,” including the interest in “promoting
judicial efficiency.” Remand Decision, 2015 WL 2448037,
at *2. A remand order based on the interest of judicial
economy is not a remand predicated on agency error.
Gurley, 528 F.3d at 1328; Eady, 321 F. App’x at 975.
Our decision in Davis is instructive. There, the Vet-
erans Court vacated the Board’s decision and remanded
for the Board to make factual findings related to a VA
regulation that it had previously overlooked. 475 F.3d at
1362. The Veterans Court thereafter denied the veteran’s
fee application, holding that the veteran was not a pre-
vailing party. Id. at 1363. We affirmed, ruling that the
veteran “failed to prove that the remand was based on
administrative agency error,” in part because the remand
merely afforded the veteran the opportunity to litigate
again, and “in no way materially altered his legal rela-
tionship with the VA as to the claimed . . . benefits.” Id.
at 1366. We noted that the Veteran Court’s remand
decision did “not state that the remand [was] predicated
on agency error,” and similarly did “not state that the
Board had failed to apply or had improperly applied” the
regulation in its underlying merits decision. Id. at 1364.
Instead, the remand decision permitted additional fact-
finding “and allow[ed] the parties to submit additional
evidence.” Id.
Here, as in Davis, the Veterans Court did not make a
finding of administrative error, nor can such error fairly
be inferred from the court’s exercise of its discretion in
remanding to the Board to consider Robinson’s new legal
argument. Instead, like in Davis, the court merely al-
lowed Robinson to submit additional evidence to the
Board in support of its new argument. See id. at 1364; see
also Vaughn v. Principi, 336 F.3d 1351, 1355–57 (Fed.
Cir. 2003) (holding that remand to consider new evidence
does not confer prevailing-party status); Yates v. Nichol-
son, 140 F. App’x 954, 954 (Fed. Cir. 2005) (granting
14 ROBINSON v. O’ROURKE
motion for summary affirmance of a Veterans Court
decision finding that the veteran was not a prevailing
party, where the court exercised its discretion to allow the
veteran “the opportunity to raise a new argument before
the Board”); Gordon v. Principi, 17 Vet. App. 221, 224
(2003) (“Because the Court found no error on this point
but, rather, remanded the matter for the Board to consid-
er the issue raised for the first time on appeal, such a . . .
remand does not, by itself, confer prevailing-party status
on the appellant.”).
Robinson nevertheless argues that the Veterans Court
implicitly recognized administrative error based on the
Board’s failure to consider and address in its decision all
potentially applicable provisions of law and regulation.
Appellant Br. 4–5. In particular, Robinson argues that,
by statute, the effective date of an award must be “fixed in
accordance with the facts found.” 38 U.S.C. § 5110(a).
Further, by regulation and agency directive, patients
“have a right to receive[] . . . prompt and appropriate
treatment for any physical or emotional disability.” 38
C.F.R. § 17.33(a)(2); Veterans Health Administration
Directive 2006-041 (June 27, 2006). Robinson appears to
argue from these provisions that the Board should have
inferred from the available facts that the VA, rather than
Robinson, caused the fourteen-month delay and should
have sua sponte determined that the effective date of
Robinson’s disability rating was February 2006 rather
than April 2007. Having failed to do that, Robinson
asserts, the Board did not base its decision “upon consid-
eration of all evidence and material of record and applica-
ble provisions of law and regulation,” as required by
statute. See 38 U.S.C. § 7104(a). Robinson argues that
the Veterans Court implicitly recognized this failure. We
disagree.
The Board’s decision was based on the available medi-
cal evidence in the record—namely, the April 2007 test
results, which demonstrated that Robinson’s disability
ROBINSON v. O’ROURKE 15
had worsened. And, the only relevant dispute before the
Board with respect to Robinson’s rating was whether he
was entitled to a rating “in excess of 60 percent for the
period from April 2, 2007, forward.” J.A. 31. The Board
resolved the issue regarding the magnitude of the rating,
but had no need to address the underlying date for that
rating. Thus, the Veterans Court would have had no
basis to find that the Board’s decision was not rooted in
“all evidence and material of record and applicable provi-
sions of law and regulation,” as required by statute. 4
This case, therefore, is unlike the cases on which the
dissent and Robinson rely. In Kelly, for example, the
Board received medical information regarding two sepa-
rate diagnoses. 463 F.3d at 1353. The Board considered
only one of those diagnoses, however, in denying the
veteran’s service connection claim. Id. The Veterans
Court remanded the case for the Board to consider the
second diagnosis, and we concluded that the remand was
based on administrative error because the Board had not
considered all evidence and material of record before
making its decision on the merits. Id. at 1354. We noted
that the veteran did not bring separate claims for his two
4 The Board also granted disability compensation
for vertigo with dizziness and chronic imbalance, and
denied an initial disability rating greater than 10% for
Robinson’s cardiac disability from May 1, 2003, to April 1,
2007. But, because Robinson failed to challenge those
determinations before the Veterans Court, the court did
not address them. Remand Decision, 2015 WL 2448037,
at *1 n.1. The court therefore could not have found ad-
ministrative error with respect to the Board’s decision on
this score. Thus, to the extent that Robinson now argues
that the effective date of his 60% rating is tied to the
magnitude of his 10% disability rating, that argument is
also unavailing.
16 ROBINSON v. O’ROURKE
diagnoses, but rather brought a single service connection
claim that was supported by both diagnoses. Id. at 1353.
Here, by contrast, the effective date issue was not one
that Robinson raised before the Board. The Board, there-
fore, did not err because it considered all the evidence and
the applicable laws and regulations when making its
decision on the issues that were properly before it.
Additionally, in Former Employees of Motorola Ce-
ramic Products and Dover, the agencies conceded error,
and there could thus be no doubt that the remand deci-
sions in those cases were predicated on such error. See
Motorola, 336 F.3d at 1362 (vacating finding that appel-
lants were not prevailing parties where the government
consented to remand to the Department of Labor, and
“[t]he parties thus agreed that the Department had erred
in its action on the applications”); Dover, 818 F.3d at 1319
(“Here, the parties agree that the remand was necessitat-
ed by agency error, and the remanding court did not
retain jurisdiction. The disputed issue is only whether
the remand calls for further agency proceedings . . . .”).
The VA made no such concession here. 5
5 In a May 21, 2018 letter to this court, Robinson
identified a recent Veterans Court decision conferring
prevailing-party status on a veteran who, based on factual
information he provided for the first time on appeal to the
Veterans Court, secured remand for the Board to consider
evidence regarding medical records that the VA was
required to obtain. See Blue v. Wilkie, No. 15-1884(E),
2018 WL 2230562, at *1–2, *6–8 (Vet. App. May 16,
2018). Having considered Robinson’s submission, we find
that the facts in that case are materially distinguishable
from those here. We note, moreover, that the Veterans
Court was careful to confine its holding in that case to
“the unique circumstances presented,” and emphasized
that its opinion “is not intended to suggest that every
ROBINSON v. O’ROURKE 17
The Veterans Court’s exercise of its discretion in this
case is therefore not a tacit acknowledgement of error by
the Board.
C. The Veterans Court’s Remand Decision
Did Not Materially Alter the Legal
Relationship Between the Parties
The Veterans Court’s remand decision also did not
materially alter the legal relationship between the parties
in the manner contemplated by CRST. While it is true
that Robinson received additional consideration with
respect to his objection to the Board’s effective date de-
termination upon remand, that relief was not predicated
on an allegation that the Board had acted improperly.
And, as described above, the Veterans Court did not
agree—and indeed, could not have agreed—with such an
allegation. Even if the Veterans Court’s remand decision
compelled the Board to consider new evidence and argu-
ments on remand, the decision did not materially alter the
relationship between the parties. Instead, it merely
afforded Robinson an opportunity to have his otherwise
waived claims considered by the Board.
In sum, the remand reflects the Veterans Court’s dis-
cretionary decision to allow a waived argument to pro-
ceed. It is simply not the type of judicially sanctioned
change in the legal relationship of the parties that was
contemplated in CRST. Compare Raniere, 887 F.3d at
1307 (finding that the district court’s dismissal with
prejudice for lack of standing afforded the defendants “all
relief to which they were entitled” and therefore material-
ly altered the legal relationship between the parties), with
E. Iowa Plastics, Inc. v. PI, Inc., 832 F.3d 899, 906–07
(8th Cir. 2016) (applying CRST in the trademark context
remand could or should be found to entail implicit error.”
Id. at *8.
18 ROBINSON v. O’ROURKE
and concluding that “there is no such alteration where, as
here, the district court essentially restored the status quo
ante” (internal quotation marks omitted)).
We do not suggest that a remand predicated on a tri-
bunal’s exercise of discretion can never confer prevailing-
party status. We hold only that the particular remand at
issue here does not confer such status on Robinson.
***
Robinson’s position in this appeal would reward a
claimant for raising an argument for the first time at the
Veterans Court. Such a result is illogical and contrary to
fundamental principles of orderly procedure and good
administration. While “[w]e recognize that EAJA is an
important component of the framework within which
veterans may seek benefits,” Thompson, 682 F.3d at 1382,
we do not interpret the statute in a manner that incentiv-
izes claimants to withhold arguments before the Board,
or, alternatively, that requires the Board or Veterans
Court to sua sponte search for and address issues that
may be lurking in the record but that have not been
briefed.
It is one thing for the Veterans Court to exercise its
discretion to overlook waiver and issue exhaustion in
order to permit a veteran to press a late-raised argument.
It is quite another for us to require the Veterans Court to
confer prevailing-party status whenever it exercises such
discretion.
CONCLUSION
We have considered Robinson’s additional arguments
and find them unpersuasive. For the reasons stated
above, we affirm the Veterans Court’s decision denying
Robinson’s application for attorney fees.
AFFIRMED
ROBINSON v. O’ROURKE 19
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
BENNIE C. ROBINSON,
Claimant-Appellant
v.
PETER O’ROURKE, ACTNIG SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2110
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-619, Judge Robert N. Davis.
______________________
NEWMAN, Circuit Judge, concurring-in-part, dissenting-
in-part.
I concur that this court has jurisdiction over this ap-
peal, in which veteran Bennie Robinson requests attorney
fees under the Equal Access to Justice Act (EAJA). How-
ever, I respectfully dissent from the ruling that Mr.
Robinson is not entitled to attorney fees for the appeal in
which the Veterans Court remanded to the Board of
Veterans Appeals (BVA) for review of an effective date for
his staged disability rating. The BVA is asked to consider
whether the inordinate delay in fulfilling the VA cardiolo-
gist’s testing order affects the effective date of his 60%
disability rating. On these premises, I believe that Mr.
2 ROBINSON v. O’ROURKE
Robinson meets the requirements for EAJA fees for that
proceeding.
The EAJA provides:
28 U.S.C. § 2412(d)(1)(A). Except as otherwise
specifically provided by statute, a court shall
award to a prevailing party other than the United
States fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred
by that party in any civil action (other than cases
sounding in tort), including proceedings for judi-
cial review of agency action, brought by or against
the United States in any court having jurisdiction
of that action, unless the court finds that the posi-
tion of the United States was substantially justi-
fied or that special circumstances make an award
unjust.
Also relevant is the VA regulation for “prompt and appro-
priate treatment:”
38 C.F.R. § 17.33(a)(2). Patients have a right to
receive, to the extent of eligibility therefor under
the law, prompt and appropriate treatment for
any physical or emotional disability.
and “Veterans Health Care Service Standards,” VHA
Directive 2006-041 (June 27, 2006), stating that the VA
shall provide “timely and convenient access to health
care,” and that:
(6) Patients must be able to schedule an appoint-
ment for a routine diagnostic test within 30 days
of referral.
In addition, legislation implements the policy of assuring
adequate attention to veterans’ concerns:
38 U.S.C. § 5107(b) Benefit of the doubt.-- The
Secretary shall consider all information and lay
and medical evidence of record in a case before the
ROBINSON v. O’ROURKE 3
Secretary with respect to benefits under laws ad-
ministered by the Secretary. When there is an
approximate balance of positive and negative evi-
dence regarding any issue material to the deter-
mination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
As stated in Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir.
1998), VA proceedings operate within a “strongly and
uniquely pro-claimant” system.
DISCUSSION
Mr. Robinson, a veteran of Vietnam, consulted a VA
cardiologist on February 23, 2006, and the cardiologist
issued an order for certain coronary tests. The tests were
not performed. Mr. Robinson again consulted a VA cardi-
ologist on November 27, 2006. Tests were again ordered.
The tests were eventually performed on April 2, 2007.
After various proceedings in the Regional Office and the
BVA, the BVA issued a Ruling dated November 21, 2013,
establishing inter alia a 60% disability rating effective
April 2, 2007.
Mr. Robinson’s position is that the 60% rating should
run from the date the coronary tests were first ordered,
not the date they were performed. The BVA decision did
not mention an issue of effective date. Mr. Robinson
appealed the effective date to the Veterans Court; and
that court remanded to the BVA to reconsider the effec-
tive date. The Veterans Court denied Mr. Robinson’s
request for EAJA attorney fees for that proceeding.
Mr. Robinson does not appeal the 60% rating. His
appeal was on the sole ground that in view of the delay in
conducting the tests, the effective date should be Febru-
ary 23, 2006, when the tests were first ordered. My
colleagues now hold that attorney fees are not available,
on the ground that because Mr. Robinson did not present
an argument to the BVA concerning the effective date, he
4 ROBINSON v. O’ROURKE
cannot obtain attorney fees for his action in the Veterans
Court.
This holding, and its premises, are contrary to the
weight of authority, for several reasons:
In interpreting the “prevailing party” provision of the
EAJA, precedent mentions the role of “administrative
error” in agency remands. In Thompson v. Shinseki, 682
F.3d 1377 (Fed. Cir. 2012), this court held that if the
remand “necessarily implied that the Board failed to
fulfill its obligations in the first instance,” then this is
“administrative error” and entitles the veteran to “pre-
vailing party status.” Id. at 1382. Failure to consider the
14-month delay was surely administrative error, for
statute and regulation require that all factors be consid-
ered. See Kelly v. Nicholson, 463 F.3d 1349, 1354–55
(Fed. Cir. 2006) (awarding EAJA attorney fees for remand
from the Veterans Court to the BVA, predicated on the
VA’s obligation to consider all evidence of record, 38
U.S.C. § 5107(b)). Subsection 5107(b) “applies not only to
decisions relating to the overall merits of a claim, but by
its plain language it applies to all decisions determining
any material issue relating to the claim.” Id. The effec-
tive date for Mr. Robinson’s 60% disability rating, as
affected by the exceptional delay in testing, was surely a
material issue relating to his claim.
However, the BVA did not mention the 14-month de-
lay in its decision. “Because of the paternalistic nature of
the proceedings, the [BVA], like the [Regional Office], is
required to fully and sympathetically develop the veter-
an’s claim to its optimum before deciding it on the mer-
its.” Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009)
(quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir.
2008) (internal quotation marks omitted)). This develop-
ment is now consigned to the BVA on remand; it could not
have occurred but for this remand.
ROBINSON v. O’ROURKE 5
The majority nonetheless holds that since the effec-
tive date was not placed at issue by Mr. Robinson in the
prior BVA proceeding, he cannot receive attorney fees for
his Veterans Court appeal by which he now will obtain
consideration of the effective date by the BVA on remand.
The panel majority errs in requiring that Mr. Robinson
should have argued the effective date in the prior BVA
proceeding. The Court has admonished that veterans’
proceedings before the Regional Office and the BVA
should be “as informal and nonadversarial as possible.”
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S.
305, 323–24 (1985). “The government’s interest in veter-
ans cases is not that it shall win, but rather that justice
shall be done, that all veterans so entitled receive the
benefits due to them.” Barrett v. Nicholson, 466 F.3d
1038, 1044 (Fed. Cir. 2006).
The judicial obligation is to assure that the veteran
has a reasonable opportunity to obtain the benefits to
which he is entitled, an obligation that required Mr.
Robinson to take an appeal to the Veterans Court in order
to obtain consideration by the BVA of the effective date.
When the veteran has no recourse but through the courts,
“EAJA is a vital complement to this system designed to
aid veterans, because it helps to ensure that they will
seek an appeal when the VA has failed in its duty to aid
them or has otherwise erroneously denied them the
benefits that they have earned.” Thompson, 682 F.3d at
1380–81 (quoting Kelly, 463 F.3d at 1353).
A remand can constitute relief sufficient to support
the award of EAJA fees. The Veterans Court’s remand to
the BVA, with instructions to review the effective date, is
the partial relief on the merits that precedent illustrates
in connection with the EAJA. Remand was the only path
by which Mr. Robinson could obtain the review that the
BVA had not conducted. See Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
U.S. 598, 603 (2001) (for EAJA purposes, the veteran
6 ROBINSON v. O’ROURKE
must have obtained “some relief on the merits”). Total
success is not required. Shalala v. Schaefer, 509 U.S. 292,
298–99 (1993) (holding that claimant was a “prevailing
party” for the purposes of the EAJA because “the plaintiff
has succeeded on a [ ] significant issue in litigation which
achieved some of the benefit sought in bringing suit”). See
Wright, Miller & Kane, Federal Practice and Procedure:
Civil 3d § 2667 at 212 (“[A] claimant who has ob-
tained some relief usually will be regarded as the prevail-
ing party even though he has not sustained all of his
claims.”); see id. at 212 n.16 (collecting cases).
Precedent has considered the effect of remand orders
in connection with various government agencies, stating
that “[s]ecuring a remand to an agency can constitute the
requisite success on the merits.” Kelly, 463 F.3d at 1353;
see Ward v. U.S. Postal Serv., 672 F.3d 1294, 1300 (Fed.
Cir. 2012) (remanding for an agency to apply precedent to
the evidence is a remand “clearly caused by administra-
tive error” sufficient for prevailing party status under the
EAJA). Here there was no retention of jurisdiction by the
Veterans Court. See Former Emps. of Motorola Ceramic
Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir.
2003) (“[W]here 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 successful in the remand proceedings
where there has been a retention of jurisdiction.”). Thus
the outcome on the remand is irrelevant to Mr. Robinson’s
prevailing party status in the Veterans Court proceeding
that led to the remand.
To be sure, not every remand constitutes “some relief
on the merits.” See Vaughn v. Principi, 336 F.3d 1351,
1357 (Fed. Cir. 2003) (“Minimal relief resembling an
interlocutory ruling that reverses a dismissal for failure to
state a claim or a reversal of a directed verdict will not
ROBINSON v. O’ROURKE 7
satisfy the statutory requirements to achieve prevailing
party status.” (quoting Hewitt v. Helms, 482 U.S. 755,
760 (1987) and Hanrahan v. Hampton, 446 U.S. 754
(1980) (internal quotation marks omitted)).
My colleagues rely on Davis, 475 F.3d at 1364, for its
statement that “remands for the consideration of new
evidence discovered for the first time during appeal and
remands to consider the effects of intervening new law do
not qualify plaintiffs as prevailing parties.” (internal
citations and footnote omitted). Here the delay in testing
was not new evidence; the delay was not discovered for
the first time during appeal; the delay was in the record
before the Regional Office and the BVA.
In Kelly, 463 F.3d at 1351–53 & n.3, this court held
that attorney fees are properly awarded for remand to the
BVA to consider all of the medical records related to
Kelly’s claim; we explained that it was administrative
error for failure to consider “all evidence and material of
record.” Id. at 1354–55. Yet the VA did not consider or
discuss the delay in testing that was in the evidence
before it, necessitating this remand.
The VA suggests that even if the BVA selected the
wrong effective date or failed to consider all of the evi-
dence, Mr. Robinson caused the error because he did not
raise the issue in the proceeding before the BVA. 1 VA Br.
at 17–18. However, BVA error need not be foreseen,
particularly when the critical issues in the BVA were
service connection and the percentage disability rating.
There is cogent support for Mr. Robinson’s argument that
1 Although the VA also argues that the BVA select-
ed the correct effective date, VA Br. at 17–18, that ques-
tion is not before us; the only question is whether the
remand meets the EAJA criteria for attorney fees.
8 ROBINSON v. O’ROURKE
a claimant need not remind the agency of the law that
binds it, in order for the agency to fulfill its obligations
under the law.
The VA does not dispute that the BVA had Mr. Robin-
son’s medical records, and that the records showed the
cardiologists’ reports and orders and the date when the
medical tests were performed. Surely the BVA should
have recognized the 14-month delay, for the statute
requires that the BVA consider the entire record:
38 U.S.C § 7104(a). Decisions of the Board shall
be based on the entire record in the proceeding
and upon consideration of all evidence and mate-
rial of record and applicable provisions of law and
regulation.
The VA acknowledges that “[t]his Court has recognized
that ‘remands based on [ ] recognition of agency error
from the record do confer prevailing party status.’” VA
Br. at 13 (quoting Davis, 475 F.3d at 1364). The VA
argues that since the Veterans Court did not explicitly
find administrative error, the remand cannot be deemed
to have been based on administrative error. However, the
cases cited by the majority do not serve the situation
herein, where the evidence of delay was indisputably in
the record.
This is not a case of new or even of obscure evidence.
It is not controlling that the Veterans Court did not state
that the BVA committed error, for “remands based on our
recognition of agency error from the record do confer
prevailing party status.” Davis, 475 F.3d at 1364 (citing
Kelly, 463 F.3d at 1354 n.3). There is no contrary author-
ity.
No authority supports the majority’s application of
EAJA principles. In Davis this court stated: “In Kelly, the
agency error, although not explicitly stated in the ataxia
remand order, was nevertheless clear from the record,
ROBINSON v. O’ROURKE 9
namely that the [VA] had ignored evidence before it of
Kelly’s ataxia disorder in the service connection analysis.”
Davis, 475 F.3d at 1365. Here, evidence of the 14-month
delay was before the Regional Office and the BVA, but
was not mentioned in the BVA’s decision regarding the
effective date for the 60% disability rating. This flaw
cannot be attributed to Mr. Robinson; the VA has a duty
to consider all the evidence and fully develop a veteran’s
claim. The VA failed to do so here.
I remark on my colleagues’ curious concern that a rul-
ing in Mr. Robinson’s favor would incentivize veterans “to
withhold arguments before the Board” and then spring
their withheld arguments on the Veterans Court. Maj.
Op. at 18. I cannot imagine that a veteran would deliber-
ately withhold a winning argument from the BVA, in
order to engage in such a dubious scheme.
***
The consequences of delay in veterans’ claims have
long been recognized, starting with the American Revolu-
tion, the subject of Hayburn’s Case, 2 U.S. (2 Dall.) 409,
410 n.1 (1792) (“[M]any unfortunate and meritorious
individuals, whom congress have justly thought proper
objects of immediate relief, may suffer great distress, even
by a short delay, and may be utterly ruined, by a long
one.”). Recovery of attorney fees is not a “reward,” Maj.
Op. at 18, it is small recompense for the veteran’s need to
litigate his statutory rights.
On the relevant statutes, regulations, and precedent,
I conclude that Mr. Robinson is entitled to the EAJA
attorney fees incurred for the remand proceeding in the
Veterans Court, whether or not he ultimately succeeds on
the merits. From my colleagues’ contrary ruling, I re-
spectfully dissent.