Cleary v. Brown

8 Vet. App. 305, 1995 U.S. Vet. App. LEXIS 735, 1995 WL 583489

• Court: United States Court of Appeals for Veterans Claims
• Decided: October 5, 1995
• Docket: No. 91-2006
• Status: Published

Opinions

HOLDAWAY, Judge, filed the opinion of the Court. IVERS, Judge, filed a concurring opinion. STEINBERG, Judge, filed an opinion concurring in part and dissenting in part.

HOLDAWAY, Judge:

This case is before the Court on the appellant’s application for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. In the underlying case on the merits, the appellant sought an increased rating for post-traumatic stress disorder (PTSD),-then rated at 50% disabling. In its August 21, 1991, decision, the Board of Veterans’ Appeals (BVA or Board) denied an increased rating, and the appellant filed a timely appeal with this Court. The appellant filed his brief in April 1992, and the Secretary filed a motion for summary remand in June 1992, citing the BVA’s inadequate explanation for its August 1991 decision. On November 24, 1992, the Court issued a memorandum decision reversing the BVA decision and remanding for assignment of a 70% disability rating for PTSD and adjudication of the appellant’s claim for total disability due to individual unemployability. See Cleary v. Principi, 3 Vet.App. 495 (1992) (mem. decision). In its memorandum decision the Court used ambiguous language purporting to retain jurisdiction:

A final decision by the Board following the remand herein ordered will constitute a new decision which may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant. The Court retains jurisdiction. The Secretary shall file with the Clerk (as well as serve upon the appellant) a copy of any Board decision on remand. Within 14 days after the filing of any such final decision, the appellant shall notify the Clerk whether he desires to seek further review by the Court.

Id. at 499.

While the appeal was pending before the Court, on September 8, 1992, the regional office awarded the appellant a 100% rating effective November 1991. On remand, the BVA issued a September 19, 1993, decision granting an earlier effective date. The Secretary filed a copy of that BVA decision with the Court, and on October 25, 1993, the Court issued an order directing the appellant to advise the Court within 30 days whether he sought further review. The appellant informed the Court that he would not seek further review, and the Court entered judgment on November 2, 1993.

The appellant filed his EAJA fee application on December 2, 1993. He sought an award for 120.75 hours of work at a rate of $121.50 per hour, including 20 hours for representation before the Board on remand, for a total of $14,671.13. The Secretary did not contest that the appellant met the statutory requirements for entitlement to EAJA fees nor did he contest entitlement to fees for “preremand” work, but argued that the appellant could not recover attorney fees for his postremand work. At oral argument, the Court issued a bench order for the parties to brief issues regarding the Court’s authority to retain jurisdiction over cases remanded to the BVA. The Secretary filed a brief on January 30, 1995, and the appellant filed a brief on May 1, 1995.

I.

The appellant seeks EAJA fees, inter alia, for 20 hours of time expended by counsel representing him before the Board following the Court’s November 24, 1992, remand. He relies on Shalala v. Schaefer, 509 U.S. 292, -, 113 S.Ct. 2625, 2630-31, 125 L.Ed.2d 239 (1993), and Stillwell v. Brown, 6. Vet.App. 291 (1994), to support his argument that EAJA fees are available for postremand work in cases in which general jurisdiction was properly retained or cases in which such jurisdiction was improperly retained but not challenged. The appellant analogizes the Court’s November 1992 remand order to a Social Security Act sentence-four remand order which was treated as a sentence-six remand order. See 42 U.S.C. § 405(g) (sentence four) (district court may remand a case in conjunction with a judgment affirming, modifying, or reversing the Secretary’s decision); (sentence six) (district court may remand in light of new evidence that had not been presented during the original proceeding upon a showing of good cause). The appellant also argues that the Court has inherent authority or authority under 28 U.S.C. § 2106 to retain jurisdiction over a decision remanded to the BVA. The Secretary argues that the Court does not have the power to retain jurisdiction in such instance. The Court finds that it does not have the authority to retain general and continuing jurisdiction over a decision remanded to the BVA for a new adjudication. Postremand fees are therefore not awardable.

In its 1992 memorandum decision the Court plainly said that the BVA decision on remand was a new decision (as it manifestly was) and that a notice of appeal (NOA), to be filed within 120 days after notice of the BVA decision on remand was mailed, was required to appeal that decision to the Court. However, the Court purported to retain jurisdiction and gave the appellant 14 days to seek further review following the new BVA adjudication. This instruction apparently shortened the appeal period to 14 days, which clearly conflicts with the 120-day time period established earlier in the opinion. The Court’s instructions regarding the 120-day NOA time period closely parallel the NOA provision established by Congress in 38 U.S.C. § 7266(a). That section provides:

In order to obtain review by the Court of Veterans Appeals of a final decision of the Board of Veterans’ Appeals, a person adversely affected by that action must file a notice of appeal with the Court. Any such notice must be filed within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.

38 U.S.C. § 7266(a). Section 7266(a) is mandatory; an NOA must be filed within 120 days after a final BVA decision in order for jurisdiction to lie in this Court. See Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994) (“The CVA has jurisdiction only when the appellant files a timely appeal from a final decision of the board.”). The Court cannot extend the 120-day period for filing an NOA. See Butler v. Derwinski, 960 F.2d 139, 141 (Fed.Cir.1992); Dudley v. Derwinski, 2 Vet. App. 602 (1992) (en banc).

Rather than extending the NOA filing period, the Court apparently attempted to shorten the period to 14 days in this case. Just as the statutory language prevails when a statute and regulation conflict, see Hamilton v. Brown, 4 Vet.App. 528, 536 (1993), the statutory 120-day appeal period must prevail over ambiguous language of the court purporting to shorten the appeal period. Cf. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988) (courts created by statute may not extend jurisdiction beyond that permitted by law). Against this framework it must be borne in mind that the jurisdiction of this Court is over final decisions of the BVA: “The Court of Veterans Appeals shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” 38 U.S.C. § 7252(a). Nowhere has Congress given this Court either the authority or the responsibility to supervise or oversee the ongoing adjudication process which results in a BVA decision. Hence, this Court has no more jurisdiction to intervene in the adjudication of the “new” decision of the BVA than it did to intervene in the adjudication process which led to the initial decision which precipitated the initial appeal.

A new decision of the BVA following a remand from this Court, although perhaps related to the previous decision, is nevertheless just that, a new and separate decision, one which can only be appealed if an NOA is filed within 120 days. Here, after reversing the initial BVA decision and remanding the matter to the BVA for reajudieation, the Court had completed its appellate review of that initial decision. Legally and factually, there was nothing left to “review” of the remanded decision; there was nothing left to which our “jurisdiction to review decisions of the [BVA]” could attach. 38 U.S.C. § 7252(a). Therefore, notwithstanding its language purporting to retain jurisdiction, the Court properly could not have retained jurisdiction over the reversed BVA decision while the matter was being readjudicated. The veteran’s claim was exclusively before the BVA at the time of the postremand proceedings, not this Court. “[Cjoncurrent or dual plenary jurisdiction is impermissible. Once an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues.” See Cerullo v. Derwinski, 1 Vet.App. 195, 197 (1991). Similarly, when this Court remands for a new and discrete BVA decision, it loses jurisdiction over the matter until such time, if at all, as a new BVA decision is properly appealed.

Because the Court’s jurisdiction ended when it remanded the BVA decision, this case is analogous to sentence four of 42 U.S.C. § 405(g) rather than sentence six. Under Sullivan v. Finkelstein, 496 U.S. 617, 624-25, 110 S.Ct. 2658, 2663-64, 110 L.Ed.2d 563 (1990), a remand ordered pursuant to sentence four terminates the case, which means that the postremand proceedings are not part of the “civil action” under 28 U.S.C. § 2412(d)(1)(A) for which EAJA fees are awardable. In Travelstead v. Derwinski, 978 F.2d 1244, 1248 (Fed.Cir.1992), the Federal Circuit held that “[although the specific holding of Finkelstein is limited to appeals under § 405(g) of the Social Security Act, we do not find its precedential effect so limited.” The Circuit then went on to apply the “not ... so limited” holding of Finkelstein to the proceedings of this Court:

If, under the statute governing the jurisdiction and practice of the Court of Veterans Appeals, its order in this case “reversing the decision of the Secretary,” and deciding “that the Secretary could not follow his own regulations” “terminated the [ ] action challenging the Secretary’s final determination,” then it is final and appeal-able under Finkelstein.

Travelstead, 978 F.2d at 1248. It is for this reason that the argument advanced by the appellant (and the dissent), i.e., that because a formal judgment was not entered until after the postremand proceedings before the BVA, the “civil action” continued and thus EAJA fees are awardable, must fail: a remand order issued by this Court was final and appealable if it terminates the action challenging the Secretary’s final determination. It is true that the Court’s failure to enter the requisite judgment may, as here, render timely an otherwise out-of-time EAJA application, see Schaefer, 509 U.S. at-& n. 6, 113 S.Ct. at 2632 & n. 6, because the “burden” of a court’s error falls “on the party seeking to assert an untimeliness defense.” Id. at-n. 6, 113 S.Ct. at 2632 n. 6. That is because the EAJA’s 30-day time limit runs from the end of the period of appeal, and that period does not begin until a judgment is entered in compliance with the formalities of Federal Rule of Civil Procedure 58. However, such administrative oversight, i.e., failure to enter a judgment, does not transform the nature of a remand from a sentence-four to a sentence-six remand. Id. Here as in Schaefer, the Court’s 1992 “remand order was a final judgment” which terminated the civil action; there was nothing of substance left for the Court to do. Id. at --, 113 S.Ct. at 2632; see also Travelstead, 978 F.2d at 1247-48 (remand order of this Court was final and appealable if it terminates the action challenging the Secretary’s final determination).

We conclude that since the Court did not retain continuing jurisdiction, the appellant is not entitled to fees for 20 hours for his counsel’s representation in the postremand proceedings.

II.

Although the appellant is not entitled to fees for postremand work, he is entitled to fees for representation before this Court in 1991 and 1992. The appellant has submitted an itemized statement of services rendered showing that 120.75 hours were expended from 1991 through 1993. The appellant is entitled to fees for services rendered through December 1992, a total of 93.75 hours. Of the remaining 27 hours, 20 hours were spent on postremand matters (February through October 1993), for which fees are not awarded, and 7 hours were spent preparing the EAJA application in November 1993. In addition to the 7 hours for preparation of the EAJA fee application, the appellant in his Reply Brief has requested fees for 38.5 hours for litigation over the EAJA application itself (“fees for fees”), which includes 14.5 hours preparing the fee application in November and December 1993. Based on the description of services rendered, it appears that the 7 hours the appellant’s counsel expended in November 1993 were included in the 14.5 hour total given in the appellant’s Reply Brief. The appellant also noted in his Reply Brief that additional sums would be submitted at the completion of these proceedings.

In Cook v. Brown, 6 Vet.App. 226, 240-41 (1994), the Court established that reasonable fees for fees are awardable as part of an EAJA award. In that case, the appellant was not successful in the underlying EAJA attorney-fee application, and the Court denied the appellant’s application of fees for fees. In this case, the appellant has not prevailed on the issue of postremand fees. The Court therefore declines to award fees for litigation over the EAJA application itself on that issue. See Commissioner, INS v. Jean, 496 U.S. 154, 163 n. 10, 110 S.Ct. 2316, 2321 n. 10, 110 L.Ed.2d 134 (1990) (“Fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”).

The Court also notes that the appellant briefed a second issue in his EAJA application and Reply Brief — entitlement to an increased hourly rate based on a cost of living adjustment (COLA). Since EAJA fees are adjustable due to a cost of living increase, see Elcyzyn v. Brown, 7 Vet.App. 170 (1994), the appellant is entitled to fees for representation on that issue. However, recovery of fees for postremand representation was the primary issue in this case and required further briefing due to its complexity and importance. In view of the fact that the Court has been able to grant only a portion of the EAJA relief sought by the appellant, it grants fees for one-third of the 38.5 fees for fees hours requested, or 12.75 hours. Since work subsequent to the oral argument related to the postremand fee issue, not the COLA issue, the appellant is not entitled to fees for work subsequent to November 17, 1994. However, the appellant is entitled to fees for one-third of the hours expended for work performed after the statement submitted in his Reply Brief but before November 17, 1994.

The appellant is entitled to $75.00 per hour plus a COLA calculated by applying the United States Department of Labor’s Consumer Price Index for All Urban Consumers (CPI-ALL) for the region or local area where the services were performed to an appropriate base, mid-point date. See Elcyzyn, 7 Vet.App. at 181. The mid-point date is the date upon which the appellant’s principle brief was filed with the Court, in this case, April 17, 1992. See id. The appellant requested a fee of $121.50 per hour and attached the CPI-ALL index for the Washington, D.C. metro area to show COLA. However, following the formula specified in El-cyzyn, supra, the Court finds that the CPI-ALL index increased 53% between November 1981 and May 1992, which results in an hourly rate of $114.75, not $121.50.

III.

The appellant’s application for EAJA fees is granted for 106.5 hours at $114.75 per hour, for a total fee award of $12,220.88. The appellant may, within 30 days of the date of this decision, file a revised accounting indicating the work performed from April 6, 1994, the date of his Reply Brief, to November 17, 1994. The appellant is entitled to fees for one-third of the hours specified in the revised accounting at $114.75 per hour. Once the appellant files and serves a revised accounting, the Secretary shall have 20 days to file objections, not inconsistent with this decision, to that accounting; if objections are not filed within 20 days, or if the Secretary indicates that he will interpose no objections, the Clerk of the Court is directed to enter an order awarding one-third of the appellant’s claimed attorney fees in the revised accounting. If the Secretary files objections, a conference pursuant to Rule 33 of this Court’s Rules of Practice and Procedure would be available to assist the parties in resolving any differences. See Uttieri v. Brown, 7 Vet.App. 415, 420 (1995).

It is so ORDERED.