Weierbach v. West

12 Vet. App. 486, 1999 U.S. Vet. App. LEXIS 668, 1999 WL 493971
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 14, 1999
DocketNo. 98-1289
StatusPublished
Cited by8 cases

This text of 12 Vet. App. 486 (Weierbach v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weierbach v. West, 12 Vet. App. 486, 1999 U.S. Vet. App. LEXIS 668, 1999 WL 493971 (Cal. 1999).

Opinion

FARLEY, Judge:

On December 3, 1998, the petitioner, through counsel, filed an application for attorney fees and expenses in the amount of $4,095.00 pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The petitioner submitted that on July 21,1998, he had filed a petition for extraordinary relief, seeking (1) an order directing the Secretary to forward the petitioner’s claims folder to the Board of Veterans’ Appeals (BVA or Board); (2) an order directing the Secretary to issue a decision on the petitioner’s appeal within 90 days of the Court’s order; and (3) any other relief that the Court deemed appropriate. He noted that (1) the Court had issued an order on July 31, 1998, directing the respondent to file a response to the petition; (2) on August 28, 1998, the respondent filed a response admitting an administrative error and correcting the same; (3) on October 20, 1998, the Court issued an order requiring the respondent to provide a supplemental response which would indicate when the regional office (RO) expected to transfer the claims file to the BVA for appellate consideration of the petitioner’s entitlement to an increased rating for PTSD; (4) the supplemental response stated that the claims file was given to a member of the Board for adjudication on September 21, 1998; and (5) the BVA issued a decision on the petitioner’s claim on November 13, 1998. The Court denied the petition for extraordinary relief on November 17,1998.

On February 3, 1999, the Secretary filed a response to the EAJA application, arguing, inter alia, that (1) the petitioner, who ultimately received an adverse decision on the merits, is not a prevailing party, and (2) the Secretary’s administrative and litigative position regarding entitlement to a writ were both substantially justified at the time the petitioner filed his petition and that the Secretary did not have a final administrative or litigative position as to the merits of the petitioner’s claim as it was still pending.

The EAJA provides in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party ... fees and other expenses ... incurred by that party ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). To be considered a “prevailing party” pursuant to EAJA, it must be shown that the litigant prevailed (1) by succeeding on the merits; (2) as the result of the suit’s “catalytic effects”; or (3) by application of the “inevitable victory” test. See Chandler v. Gober, 11 Vet.App. 6, 8 (1997); Lematta v. Brown, 8 Vet.App. 504, 507 (1996). Furthermore, the veteran has the burden of demonstrating prevailing party status to the Court. Chandler, 11 Vet.App. at 7-8; see also Lematta, 8 Vet.App. at 507 (citing Environmental Defense Fund, Inc. v. [488]*488Watt, 554 F.Supp. 36 (D.C.N.Y.1982), aff'd, 722 F.2d 1081 (2d Cir.1983)).

The petitioner argues that he is a prevailing party because the petition for extraordinary relief ' acted as a catalyst in prompting the RO to transfer his claims folder to the Board. Under the catalyst theory, an applicant is considered a prevailing party when his lawsuit “acts as a ‘catalyst’ in prompting defendants to take action to meet plaintiffs claims ... despite the lack of judicial involvement in the result.” Lematta, 8 Vet.App. at 509 (quoting Guglietti v. Secretary, HHS, 900 F.2d 397, 401 (1st Cir.1990)). In order to succeed under this theory, the petitioner must show: “(1) a causal connection between the litigation and the relief obtained, and (2) that the fee-target did not act gratuitously” in granting the plaintiffs relief. Guglietti, 900 F.2d at 400; see also Lematta, 8 Vet.App. at 509 (citing Heeren v. City of Jamestown, Ky., 39 F.3d 628, 631 (6th Cir.1994) (describing first prong of catalyst theory as a determination of whether lawsuit was a “necessary and important factor” in achieving the desired result)). The petitioner must show that “it is more probable than not that the government would not have performed the desired act absent the lawsuit.” Public Citizen Health Research Group v. Young, 909 F.2d 546, 550 (D.C.Cir.1990). Although the timing of events during a lawsuit can be significant in determining whether the lawsuit had a catalytic effect for EAJA purposes, “ ‘the mere existence of a temporal coincidence ... cannot alone suffice’ to engage the gears of the catalyst test.” Langton v. Johnston, 928 F.2d 1206, 1225 (1st Cir.1991) (quoting Martinez v. Rhode Island Housing & Mortgage Finance Corp., 628 F.Supp. 996, 1001 (D.R.I.1986)); see also Chandler, 11 Vet.App. at 8.

As a preliminary matter, the Court rejects the Secretary’s argument that the catalyst theory does not survive the Supreme Court’s decision in Farrar v. Hobby, 506 U.S. 103, 113, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), which held, “No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendants,” and found that a plaintiff who had recovered only nominal damages was not entitled to an attorney fee award. As the Secretary concedes, courts in all but the Fourth Circuit have held that the catalyst theory does survive Farrar. Likewise, in Lematta, 8 Vet.App. at 508, the Court considered this question and determined that the catalyst theory is still viable.

In the alternative, however, the Secretary has argued and we agree that the petitioner is not a prevailing party under the catalyst theory. The petitioner has not shown that his petition for extraordinary relief filed with this Court was a “necessary and important factor” in the transferring of his claims file. See Langton, supra (temporal coincidence alone does not suffice under the catalyst theory); see also Lematta, 8 Vet.App. at 510. In fact, the Secretary documented through exhibits submitted that the petitioner’s file was transferred to the Board in the natural sequence of events:

• In May 1996, the petitioner submitted a Notice of Disagreement with respect to the March 1996 denials of entitlement to an increased evaluation for post-traumatic stress disorder and total disability based upon unemployability.
• In October 1997, the petitioner’s appeal was docketed.
• In December 1997, the RO sent a letter to the petitioner, informing him that his claim was delayed because the RO was attempting to obtain VA treatment records. The RO also made a request to the Social Security Administration for records pertaining to disability benefits that had been awarded to the petitioner.

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Bluebook (online)
12 Vet. App. 486, 1999 U.S. Vet. App. LEXIS 668, 1999 WL 493971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weierbach-v-west-cavc-1999.