Dover v. McDonald , 818 F.3d 1316 ( 2016 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    LYDIA C. DOVER,
    Claimant-Appellant
    v.
    ROBERT A. MCDONALD, SECRETARY OF
    VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2014-7124
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 11-2648, Judge Robert N. Davis.
    ______________________
    Decided: April 7, 2016
    ______________________
    KENNETH M. CARPENTER, Law Offices of Carpenter
    Chartered, Topeka, KS, argued for claimant-appellant.
    JESSICA COLE, Commercial Litigation Branch, Civil
    Division, United States Department of Justice, Washing-
    ton, DC, argued for respondent-appellee. Also represented
    by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT
    D. AUSTIN; Y. KEN LEE, BRIAN D. GRIFFIN, MARTIE
    ADELMAN, Office of General Counsel, United States De-
    partment of Veterans Affairs, Washington, DC.
    ______________________
    2                                      DOVER   v. MCDONALD
    Before LOURIE, REYNA, and CHEN, Circuit Judges.
    REYNA, Circuit Judge.
    Appellant sought her attorney’s fees under the Equal
    Access to Justice Act (“EAJA”) after winning vacatur and
    remand from the Court of Appeals for Veterans Claims
    (“Veterans Court”) to the Board for Veterans’ Appeals
    (“Board”). The Veterans Court denied fees, reasoning that
    the appellant was not the prevailing party because the
    remand order contemplated only dismissal by the Board
    rather than further agency proceedings. We reverse
    because the remand order expressly contemplated, and
    the appellant received, further agency proceedings, suffi-
    cient for prevailing party status under our precedents.
    BACKGROUND
    Mr. Jack Dover served in the United States Navy from
    1956 to 1960. In 1968, he filed a claim with the VA
    regional office (“RO”) for service-connected disability
    benefits relating to various conditions, including “palmar
    hyperkeratosis” in his left hand. His claim for the hand
    injury was denied, and he did not appeal. In 2004, Mr.
    Dover attempted to reopen the claim, but the RO found
    that he had not submitted new and material evidence to
    support reopening.
    In 2008, Mr. Dover requested that the VA review for
    clear and unmistakable error (“CUE”) its original 1968
    decision and the 2004 refusal to reopen. In February
    2009, the RO granted service connection based on new
    medical evidence and assigned an effective date of March
    23, 2006, the date of another request to reopen the claim
    for service connection. In December 2009, Mr. Dover
    appealed for an earlier effective date of March 4, 1968,
    but the RO found no CUE in its prior decisions. In Janu-
    ary 2011, Mr. Dover responded with more detailed argu-
    ments, but in July of that year, the Board issued a final
    ruling of no CUE with respect to the effective date.
    DOVER   v. MCDONALD                                     3
    Mr. Dover appealed to the Veterans Court. While the
    appeal was pending, he passed away. Mrs. Dover substi-
    tuted into her husband’s appeal and argued that his 2008
    CUE claim was so lacking in specificity that the Board
    should have dismissed it without prejudice and without
    reaching the merits, as required by Board regulations.
    See 
    38 C.F.R. § 20.1404
    (b). She requested remand so she
    could refile the CUE claim with the requisite specificity.
    The VA conceded that it erred by failing to dismiss Mr.
    Dover’s non-specific CUE claim.
    The Veterans Court agreed that the case should have
    been dismissed, and it therefore vacated and remanded
    the Board’s decision. The Veterans Court did not order
    the Board to dismiss the case. Instead, it provided the
    Board with the following remand instructions:
    On consideration of the foregoing, the Court SETS
    ASIDE the Board’s July 22, 2011, decision, and
    REMANDS the matter for further proceedings
    consistent with this decision. In pursuing her
    claim on remand, the appellant will be free to
    submit additional evidence and argument in sup-
    port of her claim, and the Board is required to
    consider any such evidence and argument.
    J.A. 68 (emphasis original).
    On remand, the Board dismissed Mr. Dover’s 2008
    claim without prejudice but treated the January 2011
    submission of additional arguments as a separate CUE
    claim. The Board then remanded the matter to the RO
    for consideration on the merits.
    Mrs. Dover moved under the EAJA for attorney’s fees
    incurred in pursuing her appeal. The EAJA provides fees
    for a “prevailing party” when the government’s litigation
    position was not substantially justified. See 
    28 U.S.C. § 2412
    (d). The Veterans Court rejected Mrs. Dover’s
    motion because it believed that its remand was for dis-
    4                                         DOVER   v. MCDONALD
    missal and because our precedent in Halpern v. Principi,
    
    384 F.3d 1297
     (Fed. Cir. 2004) prevents an appellant who
    wins a remand for dismissal from claiming “prevailing
    party” status. Mrs. Dover appeals to this court. We have
    jurisdiction under 
    38 U.S.C. § 7292
    (c).
    On appeal, Mrs. Dover argues that the Veterans Court
    applied the wrong legal standard to determine whether
    she was the prevailing party. She argues that the stand-
    ard is not whether her relief was limited to Board dismis-
    sal, but whether there was a change in the legal
    relationship of the parties. She argues that the Veterans
    Court’s decision changed her legal relationship with the
    Board because it permitted her to pursue her claim.
    The VA counters that the Veterans Court correctly ap-
    plied Halpern. In Halpern, we found that the appellant
    was not a “prevailing party” because the remand order
    “simply direct[ed] the Board to dismiss the action for lack
    of original jurisdiction.” 
    Id. at 1306
    . The VA argues that,
    even though the Board granted Mrs. Dover additional
    proceedings following remand, Mrs. Dover was still not a
    prevailing party because the Board’s actions contravened
    the remand order, and there was therefore no change in
    the legal relationship of the parties.
    DISCUSSION
    We review an interpretation of the EAJA by the Vet-
    erans Court without deference. Jones v. Brown, 
    41 F.3d 634
    , 637 (Fed. Cir. 1994).
    The EAJA provides that “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 . . . 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). To determine whether an appellant is the
    “prevailing party,” “the correct legal standard . . . is [that]
    DOVER   v. MCDONALD                                        5
    a party must receive ‘at least some relief on the merits of
    his claim.’” Vaughn v. Principi, 
    336 F.3d 1351
    , 1356–57
    (Fed. Cir. 2003) (quoting Buckhannon Bd. & Care Home,
    Inc. v. W. Va. Dep’t of Health & Human Res., 
    532 U.S. 598
    , 603 (2001)). Relief on the merits requires a “material
    alteration of the legal relationship of the parties.” Buck-
    hannon, 
    532 U.S. at 604
    ; see also Former Emps. of
    Motorola Ceramic Prods. v. United States, 
    336 F.3d 1360
    ,
    1364 (Fed. Cir. 2003) (“[T]o be a prevailing party, one
    must receive at least some relief on the merits, which
    alters the legal relationship of the parties.” (internal
    quotations and citations omitted)).
    Traditional examples of relief on the merits include
    judgments on the merits and consent decrees.              See
    Vaughn, 
    336 F.3d at 1357
    ; see also Tex. State Teachers
    Ass’n v. Garland Indep. Sch. Dist., 
    489 U.S. 782
     (1989).
    In contrast, “[m]inimal relief resembling an interlocutory
    ruling that reverses a dismissal for failure to state a claim
    or a reversal of a directed verdict will not satisfy the
    statutory requirements to achieve prevailing party sta-
    tus.” Vaughn, 
    336 F.3d at 1357
     (internal quotations
    omitted); see also Hewitt v. Helms, 
    482 U.S. 755
     (1987);
    Hanrahan v. Hampton, 
    446 U.S. 754
     (1980).
    Remand for further proceedings by a lower civil court
    in the federal system is not typically considered relief on
    the merits. See, e.g., Hewitt, 
    482 U.S. at 762
    ; Hanrahan,
    
    446 U.S. at
    758–59. We have held, however, that remand
    to an administrative agency is different. See Motorola,
    
    336 F.3d at 1365
    . An appeal of an agency decision “is
    treated as a separate proceeding from the administrative
    proceeding, and a remand may [therefore] constitute the
    securing of relief on the merits.” 
    Id.
     Consequently, we
    have held that where the remanding court has not re-
    tained jurisdiction, a remand to an administrative agency
    is relief on the merits if the remand was necessitated by
    6                                      DOVER   v. MCDONALD
    agency error, and the remand calls for further agency
    proceedings. 
    Id. at 1366
    .
    Here, the parties agree that the remand was necessi-
    tated by agency error, and the remanding court did not
    retain jurisdiction. The disputed issue is only whether
    the remand calls for further agency proceedings within
    the meaning of Motorola.
    The VA argues that the requirements of Motorola are
    not met because—notwithstanding the remand order’s
    call for “further proceedings”—the order as a whole sug-
    gested that those proceedings should be limited to dismis-
    sal. The VA relies on Halpern, in which we held that a
    remand instructing the agency to dismiss for lack of
    jurisdiction does not call for further agency proceedings
    within the meaning of Motorola. Halpern, 
    384 F.3d at 1306
    . We disagree that Halpern dictates the outcome of
    this case.
    Halpern is distinguishable from the present case. In
    Halpern we found “nothing in the Veterans’ Court’s
    disposition of this case that requires further agency
    proceedings.” 
    Id.
     In contrast, the remand order here
    explicitly calls “for further proceedings.” J.A. 68. The
    order further instructs the Board that it must permit Mrs.
    Dover “to submit additional evidence and argument in
    support of her claim,” and that it is “required to consider
    any such evidence and argument.” 
    Id.
     On remand, the
    Board complied with these instructions by granting Mrs.
    Dover further proceedings on the merits. Because the
    remand order both contemplated and precipitated further
    agency proceedings on the merits, we conclude that Mrs.
    Dover was the prevailing party.
    We are not persuaded by the VA’s argument that Mrs.
    Dover was not the prevailing party simply because the
    remand opinion indicated that the Board should have
    dismissed Mrs. Dover’s claim without prejudice. First, as
    DOVER   v. MCDONALD                                      7
    noted above, the remand order called for further proceed-
    ings. Second, even if the remand order were understood
    as instructing the Board to dismiss the case without
    prejudice, that would not foreclose Mrs. Dover from being
    the prevailing party. In Motorola, we held that if the
    remanding court does not retain jurisdiction, a remand for
    agency error makes the appellant the prevailing party
    “without regard to the outcome of the agency proceed-
    ings.” Motorola, 336 F.3d at 1366. Because the ultimate
    merits determination is irrelevant, Halpern requires only
    that the remand leave the possibility of attaining a favor-
    able merits determination through further agency pro-
    ceedings. In Halpern, that possibility was foreclosed
    because the Veterans Court vacated on jurisdictional
    grounds. See Halpern, 
    384 F.3d at 1306
    . In this case, the
    possibility of a favorable merits determination was not
    foreclosed because the Veterans Court vacated on proce-
    dural grounds. The remand simply cleared a procedural
    hurdle (i.e., an adverse ruling on the merits with preju-
    dice) so that Mrs. Dover could pursue additional proceed-
    ings on the merits.
    Mrs. Dover was the prevailing party because the re-
    mand she won was necessitated by agency error, the
    remand called for—and Mrs. Dover received—further
    agency proceedings, and the Veterans Court did not
    retain jurisdiction. The Veterans Court’s determination
    the Mrs. Dover is not entitled to attorney’s fees under the
    EAJA as a prevailing party is therefore reversed.
    REVERSED
    COSTS
    Costs to Dover.