Kakuk v. Dept. Of Veterans Affairs , 455 F. App'x 972 ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
FRANK J. KAKUK,
Claimant-Appellan,t,
vi
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee. ..
2010-7023 _
Appeal from the United States Court of Appeals for
Veterans C1aims in case no. 07-1126, Judge A1an G.
Lance, Sr.
ON APPLICATION
Before LOURIE, GAJARSA, and LINN, Circuit Juclges.
LINN, C'ircu,it Judge.
0 R D E R
Frank J. Kakuk submits an application for fees and
expenses under the Equa1 Access to Justice Act (EAJA).
The Secretary of Veterans Affairs (“Secretary") opposes.
Mr. Kakuk sought service connection for Parkinson’s
Disease based up0n, among other things, exposure to
KAKUK V DVA 2
herbicides during his service in Vietnam. The Board of
Veterans’ Appeals (“Board”) denied service connection,
finding insufficient evidence to establish a nexus between
Mr. Kakuk’s disease and his service. The Court of Ap-
peals for Veterans Claims (“Veterans Court") affirmed
and Mr. Kakuk appealed to this court.
While Mr. Kakuk’s appeal was pending, the Depart-
ment of Veterans AEairs published a final rule affording a
presumption of service connection for Parkinson’s Disease
based upon exposure to herbicides. The Secretary moved,
without opposition, to vacate the decision of the Veterans
Court and to direct that court to remand to the Board
with orders to remand to the regional office for further
proceedings The Secretary did not concede any error ._in
its positions before the agency and Veterans Court.
Nevertheless, the Secretary stated that remand was
appropriate because the final rule might “provide Mr.
Kakuk with the nexus currently lacking between his
disability and his military service . . ." We granted the
Secretary’s motion. Mr. Kakuk now seeks fees and ex-
penses under the EAJA.
In order to succeed in an application for fees and ex-
penses under the EAJA, an applicant must show that he
was a "prevailing party.” Upon such a showing, a court
shall award attorney fees "unless the court finds that the
position of the United States was substantially justified.”
28 U.S.C. § 2414(d)(1)(A).
Prevailing party status requires “some relief on the
meritS.” Bu.ckhcmnon, Bd. & Care Home, Inc. u. W. Va.
Dep’t of Health & Humcm Res., 532 U.S. 598, 603 (2001).
The Supreme Court has been clear that remands by the
court of appeals to district courts for further proceedings
do not constitute relief on the merits or confer prevailing
party status on the successful party. See Hewitt v. HeIm.s,
482 U.S. 755, 762 (1987). A different rule prevails when
federal court review of administrative agencies is in-
3 KAKUK V DVA
volved. See Shalalo v. Schaefer, 509 U.S. 292, 299 (1993).
In that context, remand orders may confer prevailing
party status because "[s]ecuring a remand to an agency
can constitute the requisite success on the merits." Kelly
u. Ntch0ls0n, 463 F.3d 1349, 1353 (Fed. Cir. 2006).
Although this court has not definitively addressed the
standard for determining prevailing party status under
the EAJA where a remand is issued from this court to the
Veterans Court for further proceedings before the agency,
we need not do so here. Under any standard, Mr. Kakuk
is not a prevailing party.
Only remands predicated upon error confer prevailing
party status. See Dcwis v. Nicholson, 475 F.3d 1360, 1364
(Fed. Cir. 2007) ("[W]here the court below has not re-
tained jurisdiction, we have developed an approach for
determining when a remand to an administrative agency
occurs ‘because of alleged error by the agency.”i (citation
omitted)); Former Employees of Motorolcz Ceramic Pr0d-
acts 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 is been no retention of jurisdiction by the
court, or (2) when successful in the remand proceeding
where there has been a retention of jurisdiction.");
Vaughn v. Principi, 336 F.3d 1351, 1360 (Fed. Cir. 2003)
(to be a prevailing party, an applicant must have received
"at least some merit of his claim rising to the level of an
enforceable judgment on the merits or court-ordered
consent decree creating a material alteration of the legal
relationship of the parties.").
An intervening change in the law, either by statute,
regulation, or precedent, does not constitute such error for
purposes of prevailing party status. See Akers v. Nichol-
son, 409 F.3d 1356, 1350 (Fed. Cir. 2005) (not a prevailing
KAKUK V DVA 4
party when remand was predicated upon change in Vet-
erans Court precedent); Vaughn., 336 F.3d at 1356-57 (not
prevailing party when case was remanded for re-
adjudication in light of new statute). Because the remand
order here was procured without relation to any error on
the part of the agency, this application must be denied
Accordingly,
I'r ls Oru)ERED THAT:
The application is denied. 4
FOR THE COURT
DEC 0 2 zim /s/ Jan Horbaly -
Date J an Horbaly
Clerk
cc: Richmond J. Brownson, Esq.
Meredyth Cohen Havasy, Esq. ``
s25 '
FlL 0
u.s. count 0FiiPPEALs FOR
TH£ FEOERAL concur
UEC 02 2011
.lAN HORBALY
CLERK