# Vaughn v. Principi Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc. --- ## Vaughn v. Principi, 15 Vet. App. 119 (2001) {#816782} *15 Vet. App. 119* Official source: _Vaughn v. Principi, 15 Vet. App. 119, decided 2001-07-12._ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 00-1534 SYBLE M. VAUGHN , APPELLANT /PETITIONER , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE/RESPONDENT . Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges. ORDER The appellant, the widow of veteran Ed M. Vaughn, sought review, through counsel, of a June 2, 2000, decision of the Board of Veterans' Appeals (Board or BVA) that, inter alia, denied Department of Veterans Affairs (VA) service connection for the cause of the veteran's death. On November 30, 2000, the parties filed a joint motion for remand of the issue of service connection for the cause of the veteran's death, citing the need for readjudication in light of the enactment, after the June 2000 Board decision, of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), and further moved for dismissal of the remaining issues. The Court, via an order of the Clerk of the Court, granted this motion on December 15, 2000. On January 4, 2001, the appellant filed an application for an award of reasonable attorney fees and expenses pursuant to the Equal Access to Justice Act, 38 U.S.C. § 2412(d) (EAJA). On April 6, 2001, the Secretary filed a response in opposition to the appellant's application. The Secretary argues that the appellant is not a prevailing party, and that the Secretary's position at both the administrative and litigation stages of the proceedings was substantially justified. See 28 U.S.C. § 2412(d)(1)(A). On April 19, 2001, the appellant filed a reply to the Secretary's response; the appellant asserts both that he was a prevailing party and that the Secretary's position was not substantially justified at the administrative level. On May 29, 2001, the United States Supreme Court issued an opinion in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources,121 S.Ct. 1835 (2001). Therein, the U.S. Supreme Court held that the "catalyst theory" was not a permissible basis for the award of attorney's fees under the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2) (FHAA), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205 (ADA). Buckhannon, 121 S.Ct. at 1843. The U.S. Supreme Court further stated that "[w]e cannot agree that the term 'prevailing party' authorizes federal courts to award attorney's fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the 'sought-after destination' without obtaining any judicial relief." Id. at 1841. Before reaching these conclusions as to the FHAA and the ADA in Buckhannon, the Supreme Court stated in the very first paragraph of the opinion: "Numerous federal statutes allow courts to award attorney's fees and costs to the 'prevailing party.'" Id. at 1838. Later in its opinion, the Supreme Court noted that "Congress . . . has authorized the award of attorney's fees to the 'prevailing party' in numerous statutes in addition to those at issue here". Id. at 1839. Instructively, the Supreme Court cited to the appendix to the dissenting opinion of Justice Brennan in Marek v. Chesny, 473 U.S. 1, 43-51 (1985), which includes the "Equal Access to Justice Act, 28 U.S.C. § 2412(b)," id. at 49, as an example of the "numerous statutes in addition to those at issue here" that authorize attorney fees for prevailing parties. Buckhannon, 121 S.Ct. at 1839. The Supreme Court then noted that it has "interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U.S. 424, 433, n.7 . . . (1983) . . . ." Id. at1839 n.4. Moreover, this Court, in citing to Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 545 (3rd Cir. 1994), in support of an explanation as to the catalyst theory, stated that "[a]lthough Baumgartner and several of the cases it cited do not involve fees under the EAJA, they are nonetheless instructive because '[t]he legislative history of section 2412 indicates that Congress intended that 'prevailing party' as used in the [EAJA] be read consistently with other fee-shifting statutes.' Heeren v. City of Jamestown, Ky., 39 F.3d 628, 631 (6th Cir. 1994) (citation omitted)." Lematta v. Brown, 8 Vet.App. 504, 508 (1996). Thus, the Supreme Court's disavowal of the catalyst theory and its pronouncements regarding the relief required to obtain prevailing-party status call into question a significant portion of this Court's existing prevailing party jurisprudence under the EAJA. See Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 665 n.5 (Federal Circuit is bound by Supreme Court precedent until otherwise directed by Congress or Supreme Court); Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (Court precedent may be overturned by, inter alia, decision of U.S. Supreme Court). In view of the U.S. Supreme Court's opinion in Buckhannon, the Court requires supplemental briefing from the parties addressing the following issues: (1) What applicability does the holding of the U.S. Supreme Court regarding prevailing-party status under the FHAA and the ADA have upon a claim for reasonable attorney fees under the EAJA? (2) What effect, if any, does the holding of the Supreme Court regarding prevailing- party status have upon the appellant's claim for reasonable attorney fees and expenses under the EAJA in the instant case? Upon consideration of the foregoing, it is ORDERED that, not later than 30 days after the date of this order, the appellant file with the Court and serve on the Secretary a supplemental brief addressing the above questions. It is further ORDERED that, not later than 30 days after the appellant serves her supplemental brief, the Secretary file a response to this order and the appellant's supplemental brief. DATED: July 12, 2001 PER CURIAM. --- ## Vaughn v. Principi, 15 Vet. App. 277 (2001) {#816796} *15 Vet. App. 277* Official source: _Vaughn v. Principi, 15 Vet. App. 277, decided 2001-11-09._ This version includes the errata dated 19Nov01-e UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 00-1534 SYBLE M. VAUGHN , APPELLANT , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges. ORDER Pending before the Court is the appellant's application, through counsel, for an award of attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). The appellant, the widow of veteran Ed M. Vaughn, sought review, through counsel, of a June 2, 2000, decision of the Board of Veterans' Appeals (Board or BVA) that, inter alia, had denied Department of Veterans Affairs service connection for the cause of the veteran's death. On November 30, 2000, the parties, citing the need for readjudication in light of the enactment, after the June 2000 Board decision, of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), filed a joint motion for remand of that service-connected- death claim and further moved for dismissal of the remaining issues. The Court, via an order of the Clerk of the Court, granted this motion on December 15, 2000. On January 4, 2001, the appellant filed an EAJA application, seeking $1,270.03 in attorney fees and expenses. On April 6, 2001, the Secretary filed a response in opposition to the appellant's application. The Secretary argues that the appellant is not a prevailing party and, alternatively, that the Secretary's position at both the administrative and litigation stages of the proceedings was substantially justified. See 28 U.S.C. § 2412(d)(1)(A). On April 19, 2001, the appellant filed a reply to the Secretary's response; the appellant asserts both that she was a prevailing party (under both the so-called "merits" theory and the so-called "inevitable victory" theory) and that the Secretary's position was not substantially justified at the administrative level. On May 29, 2001, the United States Supreme Court issued an opinion in Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 121 S. Ct. 1835 (2001). In that opinion, the U.S. Supreme Court held that the so-called "'catalyst theory' [was] not a permissible basis" for the award of attorney fees under the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205. Buckhannon, 121 S. Ct. at 1843. The U.S. Supreme Court also reviewed and reiterated its prior precedents defining the term "prevailing party" for purposes of several fee-shifting statutes. Id. at 1839-40. On July 12, 2001, this Court ordered supplemental briefing from the parties on the issue of the applicability and effect of Buckhannon, supra. Vaughn v. Principi, 15 Vet.App. 119 (2001) (per curiam order). The appellant filed a supplemental brief on August 2, 2001, and the Secretary filed a response on September 4, 2001. The appellant argues, inter alia, that she is a prevailing party under both the catalyst theory and the merits theory because she received a remand of her claim. The Secretary argues that the appellant is not a prevailing party under the catalyst theory, the merits theory, or the inevitable-victory theory. In Thayer v. Principi, this Court recently concluded that "the definition of 'prevailing party' set forth by the Supreme Court's opinion in Buckhannon" applies to our consideration of fee applications under the EAJA. Thayer, __ Vet.App. ___, ___, No. 98-1782, 2001 WL 1002743 (Sept. 4, 2001). Therefore, "the catalyst theory is no longer available to achieve prevailing-party status in this Court" under the EAJA. Ibid. Hence, we reject the appellant's contention that she is a prevailing party in this case under the catalyst theory, as described in Thayer, supra. In Sumner v. Principi, the en banc Court has just issued an opinion denying an EAJA application filed in a case where the appellant had received a remand pursuant to Cerullo v. Derwinski, 1 Vet.App. 195 (1991), i.e., a remand to allow the BVA Chairman to grant BVA reconsideration. Sumner, __ Vet.App. ___, ___, No. 99-368, slip op. at 12 (Nov. 6, 2001). The Court concluded, as to the merits theory for attaining prevailing-party status, that "those Supreme Court cases awarding prevailing-party status either require the ultimate receipt of a benefit that was sought in bringing the litigation, i.e., the award of a benefit, or, at a minimum, a court remand predicated upon administrative error." Id. at ___, slip op. at 11 (citing Buckhannon, supra, and Shalala v. Schaefer, 509 U.S. 292 (1993)). The Court went on to deny prevailing-party status there on the grounds that "a remand does not constitute 'some relief on the merits' unless that remand is predicated upon administrative error", and that the appellant there had failed to demonstrate prevailing-party status under that "merits" test because "[n]owhere is his motion did the Secretary acknowledge error, and because, alternatively, in remanding the matter the Court did not recognize administrative error." Ibid. The joint motion for remand in this case requested a remand "due to the recent enactment of the [VCAA]". November 30, 2000, Joint Motion for Remand, at 2. The December 15, 2000, order of the Clerk of the Court granted the motion and thus ordered a remand on this same ground. Given that the sole basis for the remand was the enactment of the VCAA and that the Board's disposition of this case had occurred before the enactment of the VCAA, there could not have been any Board error with respect to the VCAA. Therefore, under the rationale and test enunciated in Sumner, the Court rejects the appellant's arguments here that she has attained prevailing-party status under the merits theory, due merely to her having received a remand in this case. See Sumner, __ Vet.App. at ___, slip op. at 8-9 (explaining that, although Stillwell v. Brown, 6 Vet.App. 291, 299-300 (1994), could be read to mean that "a remand alone" conferred prevailing-party status upon appellant, Stillwell remand was in fact based on BVA error). 2 Finally, the appellant argues that she has obtained prevailing-party status under the inevitable-victory test. The inevitable-victory test has been raised to the Court, but we have never accepted it. See, e.g., Lematta v. Brown, 8 Vet.App. 504, 510 (1996) (citing Perket v. Secretary of Health & Human Services, 905 F.2d 129, 132 (6th Cir. 1990), and holding that test inapplicable where there had been no superseding legislation); Chandler v. Gober, 11 Vet.App. 6, 8 (1997) (holding that test was not applicable where "victory has neither been attained nor assured"), overruled in part by Miley v. Principi, 242 F.3d 1050, 1054 (Fed. Cir. 2001). Where a court has remanded a case at the merits stage based solely on a statutory change, the inevitable-victory test would allow for prevailing-party status where the appellant later, at the EAJA stage, could prove that he would have prevailed at the merits stage absent that statutory change. See Perket, 905 F.2d at 133; see also Milton v. Shalala, 17 F.3d 812, 815 (5th Cir. 1994); Guglietti v. Secretary of Health & Human Services, 900 F.2d 397, 402 (1st Cir. 1990). However, under Buckhannon, 121 S. Ct. at 1840, and Sumner, __ Vet.App. at __, slip op. at 11-12, that test can no longer be viable because it lacks the critical requirement that a remand at the merits stage be predicated on administrative error. Accordingly, we hold that the inevitable-victory test, just as the catalyst test, is not a permissible basis for establishing prevailing-party status under the EAJA. See Buckhannon, Sumner, and Thayer, all supra. Hence, we hold that Buckhannon, as applied to this Court by Sumner and Thayer, both supra, precludes the appellant from achieving prevailing-party status under the merits, catalyst, or inevitable-victory test based on obtaining a remand solely for readjudication in light of the enactment of the VCAA and will deny her EAJA application. See Sumner, __ Vet.App. at ___, slip op. at 12 (denying EAJA application for failure to demonstrate prevailing-party status). Upon consideration of the foregoing, it is ORDERED that the appellant's application for EAJA fees and expenses is DENIED. DATED: November 9, 2001 PER CURIAM. 3