Blue v. Wilkie, 30 Vet.App. 61 (May 16, 2018)
HELD: To determine “prevailing party” status where agency error is not explicitly found in the merits decision or conceded by the Secretary, the Court will look to “the substantive discussion in the merits decision, the relief awarded, and whether the caselaw cited in the merits decision would allow such relief in the absence of agency error.”
SUMMARY: CAVC issued a memorandum decision that remanded the veteran’s appeal for additional development and readjudication – specifically directing the Board to obtain VA medical records. In its decision, the Court stated that it found “no error” in the Board’s failure to obtain these records because the veteran had not provided VA with the dates of treatment.
The appellant’s attorney filed an EAJA application and the Secretary challenged it, arguing that he was not a “prevailing party” since the Court expressly found “no error” in the Board’s decision.
The Court first discussed the relevant case law and outlined a three-part test, from Dover v. McDonald, 818 F.3d 1316 (Fed. Cir. 2016), to determine “prevailing party” status for EAJA purposes: “(1) the remand was necessitated by or predicated upon administrative error, (2) the remanding court did not retain jurisdiction, and (3) the language of the remand order clearly called for further agency proceedings, which leaves the possibility of attaining a favorable merits determination.” The only issue here was whether the remand was based on administrative error.
The Court noted that error can be explicit or implicit – and it could be found by the Court or conceded by the Secretary. In this case, the Court expressly found “no error” and the Secretary did not concede error – so the Court looked at “the context of the remand order itself to determine whether the remand was implicitly predicated on agency error.” The Court determined that Mr. Blue was a prevailing party based on “the substantive discussion in the merits decision, the relief awarded, and whether the caselaw cited in the merits decision would allow such relief in the absence of agency error.” The Court determined that the cases cited in the merits decision would not allow for remand in the absence of agency error – and thus concluded that, “under the unique circumstances presented by this case,” the appellant demonstrated that the remand “must have been implicitly predicated on ‘actual or perceived’ agency error.” The Court found the appellant was a prevailing party in this matter.