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As most of you know, when you have legal representation, you are entitled to Equal Access to Justice Act funds (EAJA). The catch is that you must prevail in your legal arguments and prove that the VA was “substantially unjustified” in their actions. VA pays on a “lodestar” basis as the cost of living in each city is variable. A law dog in DC is going to pull down a bigger lodestar for himself and his paralegals than one in Frankfurt, Kentucky. 

In this case, Mr. Philip Cline was clearly in the right and the Court went out of their way to point that out to a confused group of attorneys down at the General Counsel’s office at 810 Penny Lane NW.  With the cessation of all those peachy keen bonuses, everyone is positively destitute. No more free rounds of Starbucks on the Judge over at the VLJ ranch.

When Kenneth “the woodbutcher” Carpenter of Topeka fame sent his rather modest EAJA application over to the VA boys, he probably thought it was a mere formality. Vindictiveness cuts deeply when you win a big one. The anger and recriminations began anew. The Court could see this was not going to end peacefully and decided to form a panel and make it a teaching moment. And well they should. The Court has been getting far too chummy with the VASEC on this “substantially justified” thing for too long

Towards this end they logged on to Westlaw© at $59 dollars a minute and came up with all manner of legal precedent. The  final sum was Cline 5, VA 0. The Secretary’s insistence that they were substantially justified in their legal boondoggle fell flatter than a cheese soufflé at a daycare for elementary kids.

This Court will award attorney fees to a prevailing party “unless the Court finds that the position of the United States was substantially justified,” or unless the other statutory requirements are not met. 28 U.S.C. § 2412(d)(1)(A); Cycholl v. Principi, 15 Vet.App. 355, 359 (2001). Because Mr. Cline has alleged, pursuant to 28 U.S.C. § 2412(d)(l)(B), that the Secretary’s position was not substantially justified, the Secretary “‘has the burden of proving that [his] position was substantially justified in order to defeat the appellant’s EAJA application.’” Vaughn v. Gober, 14 Vet.App.92, 95 (2000) (quoting Stillwell, 6 Vet.App. at 301). The Secretary must establish that his position was substantially justified at both the Board level and before this Court. Id.; see Locher v. Brown,9 Vet.App. 535, 537 (1996); ZP v. Brown, 8 Vet.App. 303, 304 (1995)

That’s the legal bar the VASEC must jump over. And here’s the Ta-Daa! moment:

Even if the Court were to assume that this was a “close question,” however, the Court’s findings on the merits make it difficult to conclude that the Secretary’s position was reasonable. This is especially so in light of the Federal Circuit’s ruling that, “[w]here . . . the government interprets a statute in a manner that is contrary to its plain language and unsupported by its legislative history, it will prove difficult to establish substantial justification.” Patrick, 668 F.3d at 1330-31. Thus, on the whole, even though this is a case of first impression, the Court concludes that it did not present a “close” question on which the Secretary had a “reasonable” interpretation. Cf. Golliday v. Brown,
7 Vet.App. 249, 255 (1994) (explaining that, because the statute in dispute involved language that was difficult to understand and was very complex, this factor weighed in the government’s favor.)

Reviewing the totality of the circumstances, including factors identified by the Court in Stillwell, the Court today concludes that the totality of the circumstances in this case weighs against the Secretary. Accordingly, the Court finds that the Secretary has not carried his burden of demonstrating that his position was substantially justified.

As expected, Judge Lance dissented again as he did in the first Cline decision. I won’t say he’s biased towards Vets. I’ll let you come to your own conclusions in that respect. I don’t mind that. Just be thankful two judges could see the light. The most important thing to take away from this is the concept that a VA Secretary can manipulate the regulations into virtually anything he wants them to say. This happens to you-the Vet – more than you will ever know. If you fail to appeal, it stands. You’d never know they cheated you because you accepted it. Phil Cline and Ken Carpenter didn’t let that happen.

What is the teaching moment is elementary. The Secretary and his henchmen thought they could still pull out a good argument to defeat the EAJA. That, as I mentioned above, is pure animosity and poor legal good taste. Ken kicked their ass out onto the sidewalk of Indiana Ave. NW. They just couldn’t let that stand. What better way to “get even” than to play asshole and make him work for that lodestar.

As was expected, they gave it a trim around the edges but left the top alone. The Kenster, if he was smart (and he is,) probably put a little air in the pillow to fluff it up. The Court merely removed the air and left the pillow intact. Will Gunn and his dejected crew will go back to Penny Lane and lick their wounds. Ken will be back again soon and they can express their enduring ire yet again.

I wonder what kind of chutzpah it takes to honestly think you can blow smoke up the Court’s collective nose and cause them think like you do. The Secretary’s position was so far off in left field, it was good to see the Court micro-analyze this for posterity to chew on.  I have no beef with Judge Lance living in rose-tinted glasses land once.  Twice just exhibits his poor breeding.


About asknod

VA claims blogger
This entry was posted in CAVC ruling, EAJA and tagged , , , , , , , , , , . Bookmark the permalink.


  1. david j murphy says:

    Love the smell of victory in the morning

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