Groves v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GENE S. GROVES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7077
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 06-1252, Judge William P.
Greene, Jr.
______________________
Decided: September 16, 2013
______________________
GENE S. GROVES, of Shafter, Texas, pro se.
MICHAEL D. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and KIRK T. MANHARDT, Assistant Director. Of coun-
2 GROVES v. SHINSEKI
sel on the brief were MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel, and MARTIN J. SENDEK, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before DYK, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Gene S. Groves appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying in part his application for an award of
expenses under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d). See Groves v. Shinseki, No. 06-
1252(E) (Vet. App. Nov. 21, 2012) (“Groves II”). We af-
firm.
BACKGROUND
Groves served in the U.S. Army from January 1970 to
August 1971. In March 1971, he suffered a shell frag-
ment wound to his right thigh. In September 1971, the
Department of Veterans Affairs (“VA”) regional office
(“RO”) awarded him service connection with a 10% disa-
bility rating for that injury under diagnostic code (“DC”)
7804, see 38 C.F.R. § 4.118, DC 7804 (1971) (covering
“[s]cars, superficial, tender and painful on objective
demonstration”). In June 1972, Groves complained of
“tingling and burning pain from his anteromedial thigh to
his knee,” and a VA physician noted that the shell frag-
ment “may have nicked [Groves’] saphenous nerve.”
Groves v. Shinseki, No. 06-1252, slip op. at 2 (Vet. App.
Nov. 25, 2009) (“Groves I”).
In September 1972, Groves sought an increased disa-
bility rating for the service-connected injury to his right
thigh. The same month, the RO recharacterized Groves’s
injury under DC 5314, see 38 C.F.R. § 4.73, DC 5314
(1972) (covering “muscle injuries” in the anterior thigh),
GROVES v. SHINSEKI 3
still with a 10% disability rating. The RO separately
granted service connection with a 10% disability rating
for an injury to Groves’s right saphenous nerve under DC
8627, see 38 C.F.R. § 4.124a, DC 8627 (1972), resulting in
a combined disability rating of 20%. However, because it
recharacterized Groves’s condition, the RO did not grant
Groves’s request for an increased disability rating with
respect to the service-connected injury initially awarded
in 1971 under DC 7804.
In August 1998, Groves applied for vocational rehabil-
itation benefits. Several years passed in which the VA
attempted to arrange for Groves to attend a required
initial counseling session. Groves did not do so. In April
2001, a VA counselor informed Groves that he was return-
ing Groves’s records to the RO in discontinued status “due
to [Groves’s] refusal to cooperate.” Groves I, slip op. at 5.
Groves appealed to the Board, arguing that the VA’s
handling of his application for vocational rehabilitation
failed to comply with numerous regulations. For example,
Groves asserted that the VA failed to comply with 38
C.F.R. § 21.362(b), which requires the VA to, inter alia,
“make a reasonable effort to inform the veteran and
assure his or her understanding of . . . [t]he services and
assistance which may be provided . . . to help the veteran
maintain satisfactory cooperation and conduct and to cope
with problems directly related to the rehabilitation pro-
cess.”
In separate proceedings before the RO, Groves in Oc-
tober 2003 sought to reopen the September 1972 RO
decision (denying an increased disability rating for his
thigh injury) based on clear and unmistakable error
(“CUE”). Groves contended that the September 1972
decision “impermissibly severed service connection for
[his] tender scar” and that he “was never notified of the
severance.” Groves I, slip op. at 2 (quotation marks
omitted). In July 2004, the RO found no CUE in the
4 GROVES v. SHINSEKI
September 1972 decision. Groves also appealed to the
Board from these proceedings.
On December 1, 2005, the Board issued separate deci-
sions addressing Groves’s two appeals. Regarding
Groves’s CUE claim, the Board found that, contrary to
Groves’s argument, the September 1972 RO decision “did
not sever service connection” and that the revised diagno-
sis was “required by the regulations to properly reflect
changes in the medical evidence.” See id. at 3 (quotation
marks omitted). The Board therefore found no CUE. The
Board also rejected Groves’s appeal of the denial of voca-
tional rehabilitation services, finding that Groves had
“failed to cooperate by refusing to participate in VA
counseling and evaluation.” Id. at 5. Groves, proceeding
pro se, appealed both decisions to the Veterans Court,
which issued a single decision addressing both appeals on
November 25, 2009. See id.The Veterans Court affirmed the Board’s CUE deci-
sion. It reasoned that “because [Groves’] rating was not
reduced, nor his award of service connection severed, the
action taken by the September 1972 RO constituted only a
nonsubstantive administrative act and not a severance
action.” Id. at 4. The Veterans Court therefore concluded
that the alleged lack of notice of a severed service connec-
tion provided no basis for a finding of CUE. Id. However,
the Veterans Court vacated the Board’s vocational reha-
bilitation decision. As to that appeal, “the Secretary
concede[d]” that “the Board erred by not addressing
whether [the] VA had complied with various regulatory
requirements before discontinuing services” to Groves.
Id. at 6. The Veterans Court therefore concluded that the
Board had failed to provide an adequate statement of the
reasons or bases for its decision, as required by 38 U.S.C.
§ 7104(d)(1). The Veterans Court remanded for further
adjudication on the vocational services issue.
GROVES v. SHINSEKI 5
On January 19, 2010, Groves filed an application for
litigation expenses pursuant to EAJA, 28 U.S.C.
§ 2412(d)(1). Groves sought a total of $22,727.72, consist-
ing of $99.82 for postage, $1,184.00 for photocopying, and
$21,443.90 for “computer legal/records research.” See
Groves II, slip op. at 1, 4 (alteration and quotation marks
omitted). The government opposed Groves’s EAJA appli-
cation. Although the government conceded that Groves
was a prevailing party under EAJA with respect to his
vocational rehabilitation appeal, it argued, inter alia, that
he did not prevail with respect to his CUE appeal, and
that his EAJA application did not differentiate between
expenses incurred with respect to the two separate Board
appeals. See id. at 2. The government also argued that
the bulk of Groves’s claim was for his own time spent on
research, an item for which Groves could not be compen-
sated.
The Veterans Court awarded Groves $99.82 for post-
age, but denied his application as to the $1,184 in photo-
copying expenses and $21,443.90 in research costs. Id. at
4. Regarding the postage expenses, the court found that
“postage is a reasonable and necessary expense” and that
“numerous pleadings were filed and that copies were
mailed to both the Court and the Secretary.” Id. Howev-
er, the court denied Groves’s application for photocopying
expenses, finding Groves’s documentation of those ex-
penses insufficient. Id. It explained that, for example,
Groves may have included the cost of paper in his applica-
tion, and the cost of paper was not recoverable under
EAJA. 1 Id. Finally, the court rejected Groves’s request
1 The Veterans Court based its conclusion that the
cost of paper was not recoverable on its prior decision in
March v. Brown, 7 Vet. App. 163, 170 (1994), which
reasoned that the cost of paper used in photocopying is an
“equipment-maintenance and overhead item[] of a type
6 GROVES v. SHINSEKI
for $21,443.90 in expenses for “computer legal/records
research.” Id. at 3–4 (quotation marks and alteration
omitted). The court found that Groves did “not explain
how much of his request [was] for the time he spent
researching, which is unreimbursable, . . . versus the
expenses he incurred in conducting his research.” Id.(citation omitted). The court added that “[t]here is also no
indication of whether research expenses were incurred in
developing arguments against the first Board decision,
the second Board decision, or both.” Id. at 4. The court
therefore found Groves’s itemization “too vague and
lacking in detail” to support his claim for legal research
expenses. Id. at 3.
Groves appeals. Our jurisdiction is pursuant to 38
U.S.C. § 7292.
DISCUSSION
“We review the Veterans Court’s interpretation of
EAJA de novo.” Kelly v. Nicholson, 463 F.3d 1349, 1352
(Fed. Cir. 2006) (citing Vaughn v. Principi, 336 F.3d 1351,
1354 (Fed. Cir. 2003)). EAJA provides that
[e]xcept as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and . . . expenses
. . . incurred by that party in any civil action (oth-
er than cases sounding in tort), including proceed-
ings for judicial review of agency action, brought
by or against the United States in any court hav-
ing jurisdiction of that action, unless the court
finds that the position of the United States was
[that] [it found] would not normally be billed to a client.”
Id. In light of our disposition, we need not decide here
whether the Veterans Court was correct that the cost of
paper is not recoverable.
GROVES v. SHINSEKI 7
substantially justified or that special circum-
stances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).
In Kay v. Ehrler, the Supreme Court held that pro se
litigants may not recover attorney’s fees under the Civil
Rights Attorney’s Act of 1976, see 42 U.S.C. § 1988, and
that this rule even extends to lawyers who litigate their
own cases pro se. 499 U.S. 432, 435, 438 (1991). The
same rule applies to all pro se litigants under EAJA. E.g.,
Krecioch v. United States, 316 F.3d 684, 687-88 (7th Cir.
2003); SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir.
1994). Prior to Kay, we held that pro se litigants may
recover expenses, but not attorneys’ fees. Naelek v. Dep’t
of Transp., 845 F.2d 976, 981 (Fed. Cir. 1988). It is unset-
tled whether, in light of Kay, the recovery of expenses by
pro se litigants is still proper, and if so, exactly which
types of expenses are recoverable.
Nonetheless, cases in other circuits have made clear
that the time spent by a pro se litigant on such efforts as
legal research is not recoverable. In Krecioch, a claimant
who succeeded in part in a civil forfeiture proceeding
sought attorney’s fees and expenses under EAJA. 316
F.3d at 686. Among Krecioch’s “expenses” was $2,800.00
for “paralegal services” performed by a fellow inmate,
which included “research [and] drafting motions.” Id.(quotation marks omitted) (alteration in the original).
Although this “describe[d] the activities of an attorney,”
the Seventh Circuit held that attorney’s fees were not
recoverable because Krecioch was a pro se litigant. Id. at
687-88.
Similarly, in Kooritzky v. Herman, a pro se claimant
sought attorney’s fees and expenses after successfully
challenging a Department of Labor regulation. 178 F.3d
1315, 1316 (D.C. Cir. 1999). Among the “expenses”
claimed by Kooritzky was “expert witness” expenses for
the time Kooritzky spent “acting as an immigration law
8 GROVES v. SHINSEKI
‘expert’ in his own case.” Id. at 1321. The court held that
“a pro se attorney-litigant may not evade the prohibition
against recovery of attorney fees under the EAJA by
seeking to characterize himself as an ‘expert witness.’”
Id. The court reasoned that a contrary rule “would allow
attorney-litigants to evade the [Supreme] Court’s pro-
nouncement in Kay by proclaiming themselves legal
‘experts’ and thereby allowing them to recover attorney
fees relabeled as ‘expert expenses.’” Id. at 1323. The
court therefore held that Kooritzsky’s claim for fees for his
own time, “whether characterized as ‘attorney fees’ or
‘expert expenses’ must fail.” Id. at 1322.
Here, Groves argues that the Veterans Court erred by
failing to award him “computer/legal research” expenses.
Appellant’s Br. 5. The Veteran’s Court noted that
Groves’s application “does not explain how much of his
request is for the time he spent researching, which is
unreimbursable.” Groves II, slip op. at 3. We agree with
the Seventh and D.C. Circuits that compensation for time
spent developing claims or legal positions is not recovera-
ble under EAJA. See Kooritzsky, 178 F.3d at 1322–23;
Naekel, 845 F.2d at 981. We therefore conclude that the
Veterans Court committed no legal error in denying
Groves’s request for research expenses. For the same
reason, the Veterans Court committed no legal error in
denying Groves’s claims with respect to photocopying
expenses on the ground Groves failed to distinguish
between expenses incurred with respect to the successful
and unsuccessful claims.
Groves also appears to argue that the Veterans Court
improperly held his pro se filings to the same standard as
those filed by attorneys. However, while “pro se filings
must be read liberally,” Harris v. Shinseki, 704 F.3d 946,
948 (Fed. Cir. 2013), we cannot agree that the Veterans
Court held Groves’s application to an inappropriately high
standard. Such filings must still be clear enough to
enable effective review. See, e.g., Cruz v. Gomez, 202 F.3d
GROVES v. SHINSEKI 9
593, 597 (2d Cir. 2000) (concluding “[e]ven after allowing
for due deference to a pro se plaintiff,” “vague” and “con-
clusory” allegations were not sufficient to state a claim).
Here, the Veterans Court identified significant and perti-
nent ambiguities that prevented it from effectively re-
viewing Groves’s application. We conclude that the
Veterans Court did not err by failing to read Groves’s
filings liberally.
We have considered Groves’s remaining arguments
and find them to lack merit.
AFFIRMED
COSTS
No costs.