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FormerMember

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Few of you might agree that a loss at the CAVC is beneficial. However, I just got the shaft yesterday for my EAJA funds. Judge Davis dawdled for 6 months after the VA gave me everything on my Extraordinary Writ (filed in January 2015) to deny us a piddling $3,907.63. This is due to the EAJA requirement that the Court issue an order to VA to "fix" something. We presented the Ex Writ to the Judge and he, in turn, asked the VA whazzzup? Faster than you can skin a cat, I had SMC all the way back to 1994, an increase in my porphyria, my ratings for cryoglobulinemia and fibromyalgiia. Done. Just like that -in 45 days. What the Judge never did was "order" the VA to do it. Thus he denied our EAJA fees. The crux of the argument is the original filing for this in 2012. We won it all then but VA "disremembered" to give it all to me. Thus, the original CAVC decision to remand it in 2013 was the "order" needed to justify it. Based on that, Judge Davis screwed up.

http://asknod.org/2016/02/26/cavc-graham-v-mcdonald-the-buckhannon-catalyst-theory/

VA has chosen to die on this hill. Since I want each and every one of you to have the same benefit if you find yourself in this predicament, I'm filing first for a panel decision and, in the event of a refusal, I will go to the Federal Circuit to get it done. Hooo, doggies. I've never been to the Fed Circus before. This will be fun and a learning experience for us all. 

Edited by asknod
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  • Content Curator/HadIt.com Elder

I'm no lawyer, but 5 U.S. Code § 504 - Costs and fees of parties contains nothing restricting payment to only when an "order" has been made. In fact, the word "order" does not even appear in the entire section. The first paragraph actually says "shall", which should be a requirement, instead of "may", which is optional.

Did the CAVC specifically cite a law justifying their denial of attorney fees or were they just making it up?

Quote

(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.

 

 

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 The VA didn't have to put up much of an argument. Davis is on their BFF list from what I can see. The legal argument everyone is using is Buckhannon.

 Clearly, the Court’s denial of his petition did not award a benefit to Petitioner because it did not provide relief that created a "material alteration of the legal relationship of the parties." See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 601, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) (for prevailing-party status based on receipt of benefit sought, party must be awarded relief by court that creates a "material alteration of the legal relationship of the parties").

On April 3, 2013 by virtue of the Joint Motion for Partial Remand (JPMR) the court ordered VA to give me my earlier effective date for all claims filed March 31, 1994. That is what the legal folks call the smoking gun. If the VA didn't award me everything in 2013, it was a purposeful oversight. I do not need another 19 years to fight it. Granted, a Ex Writ is probably not the perfect tool to do this with but there really is no way for a Vet to go back and ask the CAVC to make VA comply with an earlier decision. 

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  • HadIt.com Elder

sorry to hear this alex  always something with the VA  They are never happy unless the can screw up a vets claim somehow.

 I'm sure there is some help at NOVA/NVLSP , Maybe this will be cleared up with the panel decision in your favor.

I Actually never heard they could/would do this type of thing especially a Judge.

did they say how long or your limitations on appeal would be?

I wish you the best with this.

 

...............Buck

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So, am I saying the same thing if I change the wording to state the opposite " a Court's granting of the petition is considered as it did create a benefit to the Petitioner as it provided relief that created a material alteration of the legal relationship of the parties" ?

Seems to me the question is one of materiality and how exactly the Court determines what is material and what is immaterial.

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