Harvey v. Principi , 2002 U.S. Vet. App. LEXIS 676 ( 2002 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 98-1375
JIMMIE HARVEY , JR., APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges.
ORDER
On September 19, 2000, the Court issued an opinion affirming the June 15, 1998, Board of
Veterans' Appeals (Board) decision that denied the appellant's application for Service Disabled
Veterans' Insurance on the grounds that he failed to meet the basic criteria for entitlement to such
benefits. On November 15, 2000, following the enactment of the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), the Court automatically
recalled judgment as to the September 19, 2000, decision. See In Re: Veterans Claims Assistance
Act of 2000, U.S. Vet. App. Misc. Order No. 4-00 (Nov. 13, 2000) (en banc). On December 4, 2001,
the Court withdrew its September 19, 2000, opinion, vacated the June 15, 1998, Board decision, and
remanded the matter for readjudication in light of the VCAA.
The appellant subsequently filed, through counsel, an application for an award of attorney
fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The
Secretary filed a response. On July 1, 2002, the appellant filed a motion to stay proceedings pending
a ruling by the United States Court of Appeals for the Federal Circuit (Federal Circuit) on cases that
had been consolidated for consideration by the Federal Circuit. The cases include
Vaughn v. Principi, 15 Vet.App. 277, 279 (2001) (per curiam order), appeal docketed, No. 02-7019
(Fed. Cir. Nov. 29, 2001); Sumner v. Principi, 15 Vet.App. 256, 264-65 (2001) (en banc), appeal
docketed, No. 02-7169 (Fed. Cir. Feb. 13, 2002); and Thayer v. Principi, 15 Vet.App. 204, 211
(2001), appeal docketed, No. 02-7012 (Fed. Cir. Nov. 29, 2001). The Court will deny the appellant's
stay motion because the Court's decisions in Vaughn, Sumner, and Thayer, unless or until they are
overturned, are binding on this Court. See Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991). The EAJA
application satisfies the jurisdictional and content requirements. See 28 U.S.C. § 2412(d)(1)(B).
In this case, the appellant's claim was remanded solely in light of the VCAA's enactment.
Because the remand thus was not predicated upon administrative error, the appellant is not a
prevailing party under the merits theory. See Vaughn, supra; Sumner, supra. Moreover, the catalyst
and inevitable-victory tests are not viable means to attain prevailing-party status. See Vaughn, supra;
Thayer, supra. Accordingly, the appellant cannot be considered a prevailing party for EAJA
purposes.
On consideration of the foregoing, it is
ORDERED that the appellant's motion to stay proceedings is denied. It is further
ORDERED that the appellant's EAJA application is DENIED.
DATED: September 13, 2002 PER CURIAM.
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