Robinson v. Wilkie

• Court: Court of Appeals for the Federal Circuit
• Decided: January 7, 2021
• Docket: 20-1129
• Status: Unpublished

Opinion

Case: 20-1129 Document: 40 Page: 1 Filed: 01/07/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LEROY S. ROBINSON, JR., Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1129 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 15-715, Senior Judge Mary J. Schoelen. ______________________

Decided: January 7, 2021 ______________________

TARA R. GOFFNEY, Bronx, NY, for claimant-appellant.

MOLLIE LENORE FINNAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, EVAN SCOTT GRANT, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. Case: 20-1129 Document: 40 Page: 2 Filed: 01/07/2021

______________________

Before O’MALLEY, TARANTO, and STOLL, Circuit Judges. O’MALLEY, Circuit Judge. Leroy S. Robinson, Jr. (“Robinson”) appeals from a sin- gle-judge decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) granting Robinson some, but not all, requested attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Robinson v. Wilkie, No. 15-0715(E), 2019 WL 3938609 (Vet. App. Aug. 21, 2019). Robinson argues that the Veter- ans Court improperly required him to file a motion for leave to amend his initial EAJA application, wrongly de- creased his fees award by excluding certain hours spent on an earlier appeal to this court, and, in the alternative, lacked authority to resolve Robinson’s EAJA application because no final judgment was entered in this case. For the reasons discussed below, we find that any errors in the Veterans Court’s procedure were harmless. We thus affirm as to the legal issues raised by Robinson and dismiss Rob- inson’s challenge to the court’s accounting. I. BACKGROUND Robinson served two stints in the United States Marine Corps: from August 1966 to September 1968 and from June 1972 to May 1973. In August 2001, Robinson filed a claim with the Veterans Administration (“VA”) seeking service connection for post-traumatic stress disorder (“PTSD”), which the VA granted with an effective date of December 3, 2004. Robinson appealed the VA’s effective date deter- mination to the Board of Veterans’ Appeals (“Board”). On December 3, 2014, the Board denied Robinson an earlier effective date. On February 20, 2015, Robinson appealed, through counsel, the Board’s decision to the Veterans Court. For over two years, between May 2015 and August 2017, the Case: 20-1129 Document: 40 Page: 3 Filed: 01/07/2021

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parties engaged in an extended dispute regarding the con- tent of the record before the agency (“RBA”). In June 2015, Robinson filed a motion with the Veterans Court, pursuant to United States Court of Appeals for Veterans Claims Rule 10(b), disputing the content of the RBA. In particular, Rob- inson noted that several documents in his possession were missing from the RBA, including certain medical records. Robinson argued that he should be allowed to examine the original paper claim file, rather than just the VA-provided electronic records. The Secretary responded that the offi- cial claim file did not contain the original paper documents but was instead composed of documents that had been scanned and electronically uploaded to the Veterans Bene- fits Management System and Virtual VA electronic data- bases. In July 2016, following oral argument, the Veterans Court held that the Secretary’s refusal to allow Robinson’s attorney access to the original paper documents was con- trary to Rule 10(d), which allows appellants access to “orig- inal material.” Robinson v. McDonald, 28 Vet. App. 178, 184 (2016). The court ordered that “the Secretary assemble all of the appellant’s paper source documents” and “provide them to the appellant’s representative for review” within fifteen days. Id. at 192. On August 17, 2016, the Secretary notified the Veter- ans Court that the documents had been mailed to the Phil- adelphia regional office (“RO”). Robinson’s counsel was scheduled to visit the RO on August 30, 2016. When Rob- inson’s counsel arrived for her appointment, however, she was informed that the claim file was unavailable because it had been sent to a vendor for scanning eleven days ear- lier. Thereafter, on September 12, 2016, Robinson filed two motions with the Veterans Court—a motion to hold the Secretary in contempt and a motion for sanctions. On the same day, the Secretary appealed to this court the Case: 20-1129 Document: 40 Page: 4 Filed: 01/07/2021

Veterans Court’s July 2016 decision ordering production of the paper file. Given the interlocutory appeal, the Veter- ans Court decided to hold Robinson’s motions in abeyance. In November 2016, Robinson filed a motion to dismiss the Secretary’s appeal, arguing that it was an improper ap- peal from a non-final order and that it was frivolous. The Secretary responded by filing a motion to voluntarily with- draw the appeal. Robinson then requested that this court sanction the Secretary. We issued an order on January 25, 2017, granting the Secretary’s motion to withdraw the ap- peal, denying as moot Robinson’s motion to dismiss, and denying Robinson’s request for sanctions. Robinson v. Snyder, No. 2016-2653, 2017 WL 4277641 (Fed. Cir. Jan. 25, 2017). The case then returned to the Veterans Court, where the record dispute was finally resolved, and Robinson re- ceived all outstanding documents. The Veterans Court also granted-in-part Robinson’s motions for contempt and sanctions. The court found the Secretary in civil contempt because he did not comply with the July 2016 order. Spe- cifically, it found “scheduling the appointment and subse- quently sending the documents off-site prior to the appointment constitutes gross negligence and a gross lack of diligence” and imposed a sanction in the amount of $1,411.83 for the time Robinson’s counsel expended in her failed efforts to inspect the paper file. J.A. 392–93. The Veterans Court further found, however, that the remain- der of the Secretary’s conduct did “not rise to the level of sanctionable offense.” Id. at 392. On the same day, March 5, 2018, the Veterans Court granted the parties’ joint mo- tion to vacate the December 2014 Board decision and re- manded to the Board for further proceedings. The mandate issued simultaneously with the remand order. Robinson filed an application (“initial EAJA applica- tion”) for attorney fees pursuant to the EAJA on April 4, 2018. The application requested market rate legal fees Case: 20-1129 Document: 40 Page: 5 Filed: 01/07/2021

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under the “special factor” provision of 28 U.S.C. § 2412(d). See 28 U.S.C. § 2412(d)(2)(A) (“[A]ttorney fees shall not be awarded in excess of $125 per hour unless the court deter- mines that an increase in the cost of living or a special fac- tor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.”) In to- tal, the application requested $207,110.75 in attorney fees and $2,874 in expenses. The attorney fees request reflected 452.6 hours—388.2 hours spent on the RBA dispute at a “special factor” rate and 64.4 hours at the New York mar- ket rate. Robinson requested the “special factor” adjust- ment based on Starry Associates, Inc. v. United States, 131 Fed. Cl. 208 (2017) (“Starry I”), in which the United States Court of Federal Claims held that “egregious” agency misconduct qualified as a “special factor” warrant- ing an increased fee under § 2412(d)(2)(A). Robinson ar- gued that the Secretary’s delay and “intransigence” during the RBA dispute were egregious under the Starry I analy- sis. J.A. 54–56. The Secretary filed a response to Robinson’s initial EAJA application on June 18, 2018. The response raised four arguments: (1) the application contained miscalcula- tions; (2) Robinson was not entitled to a “special factor” ad- justment under § 2412(d)(2)(A); (3) certain hours were unreasonably spent; and (4) certain expenses were not suf- ficiently supported. A few days later, on June 22, 2018, this court issued its decision in Starry Associates, Inc. v. United States, 892 F.3d 1372 (Fed. Cir. 2018) (“Starry II”). We held that “egregious agency misconduct is not a ‘special factor’ under § 2412(d)(2)(A).” Id. at 1377. We explained that enhanced fees for such misconduct may be available under § 2412(b), but that subsection (d) did not support such a position. Id. at 1382–83 & n.3. The Secretary filed a notice of supple- mental authority notifying the Veterans Court of this de- velopment. Case: 20-1129 Document: 40 Page: 6 Filed: 01/07/2021

On August 15, 2018, Robinson filed an “amended” EAJA application. The reasons Robinson provided for fil- ing the amendment included “to amend costs and ex- penses” and to “provide for different and/or alternative relief based on the recent CAFC holding in [Starry II].” J.A. 63. The application added 28 U.S.C. §2412(b) as a ba- sis for awarding fees. The sums requested in the amended application were $193,345.00 in attorney fees plus costs of $3,389.91. This new accounting was the result of Robinson reapportioning the rates and hours requested and “add[ing] . . . hotel and travel invoices and correct[ing] a mathematical calculation.” Appellant’s Reply Br. 6. After some back-and-forth, the Veterans Court marked Robinson’s amended application as “received” and allowed Robinson the option to file a reply to the Secretary’s June 18, 2018 Response. Robinson thereafter learned from the Veterans Court that the court was requiring him to file a motion seeking leave to amend his initial EAJA applica- tion. Robinson filed such a motion on August 26, 2018, ar- guing that he was allowed to amend his EAJA application as a matter of right. The Secretary opposed the motion in a September 10, 2018 filing, arguing that the proposed amendment presented arguments that Robinson should have made in a reply and that the amendment was preju- dicial as it was filed just one week before a scheduled EAJA conference. Robinson filed an opposed motion seeking leave to file a reply to the Secretary’s opposition and a sep- arate opposed motion seeking to stay proceedings pending resolution of the disputed amended EAJA application. On January 25, 2019, the Veterans Court denied Rob- inson’s motions. As to the motion to amend, the court ex- plained that “the motion does not identify the errors that [Robinson] wishes to correct or elucidate why the recent caselaw from the Federal Circuit prompts him to amend his petition.” J.A. 131. The court acknowledged caselaw that supports allowing amendment of an initial EAJA ap- plication to correct a defect. It reasoned, however, that Case: 20-1129 Document: 40 Page: 7 Filed: 01/07/2021

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Robinson’s “motion to amend is vague and lacking in spec- ificity, and he appears to seek to amend his initial fee ap- plication so that he may respond to arguments the Secretary made in his opposition to the EAJA application.” J.A. 132. The court concluded that such arguments are properly submitted in a reply, rather than as an amended application. The court thus ordered that Robinson, who had not taken advantage of the court’s earlier offer of a re- ply, submit a reply to the Secretary’s response to the initial EAJA application within 10 days. Id. Robinson again did not file a reply. Instead, Robinson filed a motion for reconsideration on January 30, 2019. The Veterans Court denied that motion on February 6, 2019. On August 21, 2019, the Veterans Court issued a deci- sion on Robinson’s initial EAJA application. There was no dispute that Robinson was, as required, a prevailing party and, similarly, no argument from the Secretary that the Secretary’s position was substantially justified. The court thus needed only to resolve the amount of reasonable at- torney fees. Considering the Secretary’s arguments and Starry II, the court denied Robinson’s requested “special factor” adjustment for the hours spent on the RBA dispute. Turning to the Secretary’s arguments challenging time spent on the case, the court rejected an argument that cer- tain hours spent on the RBA dispute were unreasonable. The Veterans Court accepted, however, the Secretary’s challenge to 60.6 hours spent on Robinson’s request for sanctions before this court. The Veterans Court concluded that Robinson’s “arguments in pursuit of his motion were not reasonable.” Robinson, 2019 WL 3938609, at *6. Fi- nally, the court found all requested expenses were reason- able. The court thus awarded $79,670.08 (based on the hourly rate of $203.24 for a New York Attorney multiplied by 392 hours) and $2,874 in expenses for a total of $82,544.08. Case: 20-1129 Document: 40 Page: 8 Filed: 01/07/2021

Robinson appeals. We have jurisdiction to review deci- sions of the Veterans Court pertaining to “questions of law, including interpreting constitutional and statutory provi- sions” pursuant to 38 U.S.C. § 7292(d)(1). We are, however, without authority to “review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). We thus “review the Veterans Court’s interpretation of EAJA without deference but may not review its application of EAJA to the facts of a particular case.” Winters v. Wilkie, 898 F.3d 1377, 1380 (Fed. Cir. 2018). II. ANALYSIS On appeal, Robinson argues: (1) the Veterans Court lacked authority to require him to file a motion for leave to amend his EAJA application; (2) the Veterans Court abused its discretion by denying him leave to amend; (3) the Veterans Court erroneously decreased the number of hours of attorney fees it awarded; and (4), in the alter- native, the Veterans Court was without authority to issue a decision on Robinson’s EAJA application because there was no final judgment in the case. We address each argu- ment in turn. A. Robinson first argues that the Veterans Court lacked authority to reject his amended EAJA application. Robin- son points us to cases holding that amending an initial EAJA application is allowable, at least for the purpose of correcting a fatal defect in an initial application. See e.g., Scarborough v. Principi, 541 U.S. 401, 406 (2004); Bazalo v. West, 150 F.3d 1380, 1383–84 (Fed. Cir. 1998); Dunn v. United States, 775 F.2d 99, 104 (3d Cir. 1985). The Secre- tary argues that those cases, while clearly indicating that amendment is allowable, say nothing about the proper pro- cedure for amendment. Case: 20-1129 Document: 40 Page: 9 Filed: 01/07/2021

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We agree with the Secretary that the cases cited by Robinson do not foreclose the possibility that the Veterans Court could require, via a written rule, a motion prior to allowing an amendment to an EAJA application. This does not, however, resolve whether, absent such a written rule, the Veterans Court’s procedure was proper. It seems that there is some dispute among the judges of that court as to the necessity of such a motion. See Barber v. Wilkie, No. 16-1783(E) (Vet. App. April 6, 2020), available at Ap- pellant’s Reply Br. Add-1 (denying the Secretary’s motion to dismiss an amended EAJA application that was not ac- companied by a motion for leave to amend). The incon- sistent treatment of the issue by the Veterans Court strikes us as problematic and potentially misleading to EAJA ap- plicants. We need not resolve whether the procedure used in this case was proper, however. As we discuss next, to the extent there was any error in the procedure, it was harmless. B. Robinson next argues that, assuming the Veterans Court was within its authority to require a motion for leave to amend, the Veterans Court abused its discretion when it denied Robinson such leave. Specifically, he argues that, because his amended EAJA application added a request for attorney fees pursuant to 28 U.S.C. § 2412(b), it was his right to file such a request, at any time. Though we need not and do not address whether every EAJA applicant has a right to file a new § 2412(b) application at any time, we agree with Robinson that, in this case, the Veterans Court abused its discretion when it denied him leave to amend his EAJA application to account for Starry II. Robinson’s initial EAJA application relied on Starry I as a basis for an increased fees award. Starry II specifically explained, however, that EAJA applicants should raise their “egregious” agency misconduct allegations under sub- section (b), rather than, as was found acceptable by the Case: 20-1129 Document: 40 Page: 10 Filed: 01/07/2021

United States Court of Federal Claims in Starry I, under subsection (d). 892 F.3d at 1382–83. Starry II issued after Robinson’s initial EAJA application was filed and, thus, the Veteran’s Court should have allowed him to amend his application to address the intervening change in law. The Veterans Court’s abuse of discretion was, however, harmless. In its decision on Robinson’s initial EAJA appli- cation, the court found, in a lengthy footnote, that the re- quirements for receiving fees under § 2412(b) were not met in this case. Robinson, 2019 WL 3938609, at *4 n.4 (“[T]he Court does not find that in this litigation the Secretary has ever acted in bad faith, vexatiously, wantonly, or for op- pressive reasons.”). That factual finding is not reviewable on appeal and definitively forecloses Robinson’s subsec- tion (b) request. 1 C. Robinson further argues that the Veterans Court wrongly reduced his EAJA attorney fees award by 60.6

1 Separately, assuming without deciding that the Veterans Court lacked authority to require Robinson to seek leave to amend his initial EAJA application to correct calculations and add invoices, we hold that the process the court provided Robinson rendered any procedural error harmless. The court repeatedly invited Robinson to ad- dress those issues in a reply to the government’s response to his initial EAJA application. He declined to file such a reply. Because Robinson was given ample opportunity to address any clerical-type issues with his initial EAJA ap- plication and was told on multiple occasions of the process by which he should address those issues, any error in re- quiring Robinson to seek leave to amend his application was harmless. Any actual harm to Robinson as to the cal- culation errors is the direct result of the decision to ignore the court’s suggestion. Case: 20-1129 Document: 40 Page: 11 Filed: 01/07/2021

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hours. The court’s determination turned on its factual find- ing that certain hours spent by Robinson’s counsel on a re- quest for sanctions were unreasonable. Robinson, 2019 WL 3938609, at *6. We are without jurisdiction to review such a factual finding and Robinson fails to articulate any error of law made by the Veterans Court. We, therefore, dismiss this aspect of Robinson’s appeal. D. Finally, Robinson argues that the Veterans Court was without authority to issue a decision on his EAJA applica- tion because judgment has not yet been entered in the case. In Bly v. Shulkin, 883 F.3d 1374 (Fed. Cir. 2018), we ex- plained that the time for filing an EAJA application is “within thirty days of final judgment in the action.” Id. at 1375 (quoting 28 U.S.C. § 2412(d)(1)(B)). And, a “final judgment” means “a judgment that is final and not appeal- able”—such finality normally occurs 60 days after judg- ment is entered. Id. Thus, an EAJA application is typically due within 90 days after the entry of judgment. Robinson filed his initial EAJA application on April 4, 2018, well within the 90-day window for filing such an ap- plication following the Veteran’s Court’s March 5, 2018 judgment, though before the judgment was final. Im- portantly, the premature nature of the application is incon- sequential. An EAJA application that is filed before a judgment becomes final is properly treated as timely. Bly, 883 F.3d at 1377 n.1. Following receipt of Robinson’s ap- plication, the Veterans Court did not issue a decision on Robinson’s initial EAJA application until August 21, 2019, well after the close of the 90-day period. Given this time- line of events, it is clear that Robinson’s initial EAJA Case: 20-1129 Document: 40 Page: 12 Filed: 01/07/2021

application was timely filed, the judgment became final, and the Veterans Court properly issued a decision. 2 III. CONCLUSION We have considered Robinson’s remaining arguments and find them unpersuasive. For the reasons discussed above, we dismiss Robinson’s challenge to the Veteran’s Court’s determination of the number of awardable hours of attorney fees and affirm in all other respects. AFFIRMED-IN-PART AND DISMISSED-IN-PART

2 Robinson’s reliance on Shalala v. Schaefer, 509 U.S. 292 (1993), is misplaced. In that case, the Court held that, due to a district court’s failure to comply with the then-extant requirement of Federal Rule of Civil Proce- dure 58 that judgment be entered as a separate document, the time for filing an EAJA application after final judgment had not expired. Id. at 302–03. The Veterans Court is not bound by the requirements of the Federal Rules of Civil Procedure; it prescribes its own procedural rules. See 38 U.S.C. § 7264. Robinson identifies no Veterans Court procedural rule requiring judgment be entered as a sepa- rate document and we have not independently found one. See generally Vet. App. R. 36.