Reeves v. McDonald , 603 F. App'x 956 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY REEVES,
Claimant-Appellant
v.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7032
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-1951, Judge Alan G. Lance Sr.
______________________
Decided: February 25, 2015
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, Kansas, for claimant-appellant.
ELIZABETH MARIE HOSFORD, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN,
JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE, RACHAEL BRANT,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 REEVES v. MCDONALD
______________________
Before PROST, Chief Judge, BRYSON, and WALLACH, Cir-
cuit Judges.
PER CURIAM.
This is an appeal from a decision of the Court of Ap-
peals for Veterans Claims (“the Veterans Court”), denying
the claimant-appellant’s application for legal fees and
expenses under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d). We reject the appellant’s only claim
over which we have jurisdiction, and we therefore affirm
the decision of the Veterans Court.
I
In 1981, Corby Reeves filed a claim for service-
connected disability benefits for bilateral sensorineural
hearing loss. In 1983, the Board of Veterans’ Appeals
denied his claim. Mr. Reeves filed an application to
reopen his claim in 2002 based on new and material
evidence. The Board subsequently granted his applica-
tion and awarded him service-connected disability bene-
fits, with an effective date of June 13, 2002.
In December 2006, Mr. Reeves filed a motion for revi-
sion of the 1983 Board decision, claiming that he was
entitled to an earlier effective date for his award of bene-
fits. He argued that the 1983 decision contained clear
and unmistakable error (“CUE”) because the Board had
failed to apply the combat presumption contained in 38
U.S.C. § 1154(b). 1 The Board rejected that argument,
1 Section 1154(b) provides, in pertinent part, that
for a combat veteran “the Secretary shall accept as suffi-
cient proof of service-connection of any disease or injury
alleged to have been incurred in or aggravated by such
service satisfactory lay or other evidence of service incur-
REEVES v. MCDONALD 3
relying in part on its interpretation of the scope of section
1154(b). The Veterans Court affirmed the Board’s deci-
sion. On appeal, we reversed the Veterans Court and
remanded for further proceedings. Reeves v. Shinseki, 682
F.3d 988 (Fed. Cir. 2012).
Following that appeal, Mary Reeves (Mr. Reeves’ wid-
ow, who was substituted as the claimant after Mr. Reeves’
death in February 2011) filed an application for legal fees
and expenses under EAJA. She argued that she was
entitled to an award of fees and expenses because she
prevailed on the merits of her claim, and the govern-
ment’s position in the litigation was not “substantially
justified.” See 28 U.S.C. § 2412(d)(1)(A). The Veterans
Court held that the government’s position in the case was
substantially justified and therefore denied Mrs. Reeves’
application.
Mrs. Reeves appeals to this court.
II
This court has only limited jurisdiction to review deci-
sions of the Veterans Court. The applicable jurisdictional
statute, 38 U.S.C. § 7292, authorizes us to decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions,” but provides that, except
to the extent that an appeal presents a constitutional
issue, we may not review “(A) a challenge to a factual
rence or aggravation of such injury or disease, if con-
sistent with the circumstances, conditions, or hardships of
such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such
service, and, to that end, shall resolve every reasonable
doubt in favor of the veteran. Service-connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary.”
4 REEVES v. MCDONALD
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
In light of the limits on our reviewing authority, we
generally do not have jurisdiction to review the Veterans
Court’s determination in an EAJA case that the govern-
ment’s litigation position was substantially justified. See
Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed. Cir. 1995)
(“‘[T]o determine whether the overall position of the
United States is substantially justified, trial courts are
instructed to look at the entirety of the government’s
conduct and make a judgment call whether the govern-
ment’s overall position had a reasonable basis in both law
and fact.’ This ‘quintessentially discretionary’ inquiry
necessarily involves the determination of facts and the
application of the substantially justified standard of the
EAJA to those facts. . . . [S]uch a challenge is specifically
excluded from our jurisdictional grant.”), quoting Chiu v.
United States, 948 F.2d 711, 715 (Fed. Cir. 1991).
In light of the factual nature of the “substantially jus-
tified” finding, the government has sought dismissal of
Mrs. Reeves’ appeal for lack of jurisdiction. She counters
by pointing to this court’s opinion in Halpern v. Principi,
384 F.3d 1297 (Fed. Cir. 2004). In that case, we held that
“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.” Id. at 1306,
citing Brandenburg v. Principi, 371 F.3d 1362, 1363 (Fed.
Cir. 2004); Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.
Cir. 2003).
There is some ambiguity in Mrs. Reeves’ briefing
about what she considers to be the Veterans Court’s legal
error that gives this court jurisdiction. Her principal
contention is that this court has jurisdiction over her
present appeal because the Board and the Veterans Court
in the earlier stage of this case erred in concluding that
section 1154(b) was not relevant to the issue of nexus
REEVES v. MCDONALD 5
between Mr. Reeves’ service and his disability. That
conclusion constituted legal error, Mrs. Reeves argues,
since we held in our previous decision that the section
1154(b) presumption was relevant to the issue of nexus. 2
That legal error, she argues, gives this court jurisdiction
in this case.
That argument is incorrect. In order for this court to
have jurisdiction to review the Veterans Court’s decision
denying her EAJA application, that decision itself must
be based on an assertedly erroneous legal ruling. It is not
enough that the previous decision of the Veterans Court
on the merits of Mr. Reeves’ CUE claim was based on a
legal error. That legal issue was resolved in the prior
appeal. The question before us now is whether the gov-
ernment’s position in that case was substantially justi-
fied. A claim that there was legal error in the prior
proceeding does not by itself establish that there was
legal error in the Veterans Court’s finding that the gov-
ernment’s position in that case was substantially justi-
fied.
Nonetheless, Mrs. Reeves appears also to be making a
second, and related jurisdictional argument. She con-
tends that “the lower court relied on the wrong legal
standard when it evaluated whether the government’s
position was substantially justified.” That is, she appears
to be alleging that when the Board made a legal error by
misinterpreting the applicability of section 1154(b), it
2 In order to establish eligibility for service-
connected disability benefits, a veteran must show “(1) the
existence of a present disability; (2) in-service incurrence
or aggravation of a disease or injury; and (3) a causal
relationship [or nexus] between the present disability and
the disease or injury incurred or aggravated during
service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004).
6 REEVES v. MCDONALD
made a per se unreasonable determination, which as a
matter of law could not be “substantially justified.” That
argument presents a legal question over which we have
jurisdiction.
On the merits, however, that issue is one on which
Mrs. Reeves cannot prevail. There is no support in the
law for her suggestion that if the government’s position is
based on a legal error, its position is per se unreasonable
and cannot be “substantially justified.” In fact, the law is
squarely to the contrary. “The term ‘substantially justi-
fied’ means that the government’s position was ‘justified
in substance or in the main,’ and had a ‘reasonable basis
both in law and fact.’” Patrick v. Shinseki, 668 F.3d 1325,
1330 (Fed. Cir. 2011) (emphasis added), quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988). The mere fact that
the government’s position was found to be incorrect as a
matter of law is insufficient by itself to support a finding
of insubstantial justification. Id. at 1330 (“The govern-
ment can establish that its position was substantially
justified if it demonstrates that it adopted a reasonable,
albeit incorrect, interpretation of a particular statute or
regulation.”) (emphasis added). Mrs. Reeves has present-
ed no argument suggesting a reason to overturn this well-
settled proposition.
To the extent that Mrs. Reeves seeks to characterize
the Veterans Court’s decision as having focused on the
wrong evidence in determining that the government’s
position was substantially justified, we do not have juris-
diction to review that decision. See Smith v. Principi, 343
F.3d 1358, 1361 (Fed. Cir. 2003) (“[O]ne of Mr. Smith’s
primary contentions is that the Veterans Court improper-
ly relitigated the merits of his case to conclude that the
Secretary’s position was substantially justified. That
argument appears to dispute either the Veterans Court’s
fact findings or its application of law to fact, and therefore
cannot be considered in this appeal.”).
REEVES v. MCDONALD 7
Accordingly, on the single legal issue presented as to
which we have jurisdiction, we uphold the legal standard
applied by the Veterans Court in determining whether
the government’s position was substantially justified.
Because our jurisdiction is limited to questions of law, we
do not address Mrs. Reeves’ other challenges to the Veter-
ans Court’s decision, which fall outside our jurisdiction.
AFFIRMED