Judge Davis just announced my denial for EAJA fees yesterday afternoon. It took him almost six months of struggle to write it. As the decision is horribly flawed, it will be appealed for a panel decision first. If that fails, we set sail to the Federal Circus. It’s not about the $3,904.11. It’s the legal stance he took. It shows he was asleep at the wheel.
I have been using Bob Walsh for this but he doesn’t have the deep pockets for a big assault on the Feds. Instead, I hope to enlist my fellow members in NOVA/NVLSP to take it up.
As some will recall, I won it all, or what appeared to be all back in April, 2013. The CAVC sent it back with a Joint Motion for Partial Remand (JPMR) to grant me everything I filed for in 1994. Unfortunately, the Veterans Law Judge was not happy with being overruled so he simply ignored the full thrust of the remand.
I did wait patiently for over 13 months from the date of his legal abortion to file my Extraordinary Writ. As most know, I won everything I asked for. Judge Davis doesn’t cotton to LawBob Squarepants. This we know. It came as no surprise that he took six months to craft a denial. The problem is that it is flawed.
In VA jurisprudence, when the Court remands a case back to the BVA via a joint remand, it is an acknowledgement of an administrative flaw in the decision. Judge Mark Hindin (bless his pointed little head) bifurcated two inextricably intertwined claims and denied one for failure to timely file a VA Form 9. I was in the Seattle VAMC sailing my bed around high as a kite on Dilaudid. I filed the VA 9 when I regained my senses but VA refused to accept it. I filed a request to grant equitable tolling in light of the medial situation. They never even bothered to answer it. He denied it in May 2012 and that was the end of it until the CAVC pulled their plug in April 2013. VA agreed to grant everything back to 1994 with no codicils on the porphyria. Hindin refused to honor it.
This creates a situation, judicially, where a lower tribunal refuses to obey the Court. This cannot stand for any number of reasons. Why even have a CAVC if the DVA and the BVA are going to ignore them? Judge Davis just put his imprimatur on my decision and said it’s perfectly legal to screw Vets over for as long as they want to. Up to now, when someone like me arrives again and complains via an Extraordinary Writ of Mandamus that the job was incomplete, the Court merely asks the VA Secretary if he can defend his actions. This is usually the “catalyst” for VA to fix it pronto. They did. They gave me everything I asked for in 45 days after fighting me tooth and nail for 22 years. What they refused to do was reimburse us (LawBob and moi) our legal fees for having to fix it.
Yesterday, Judge Davis agreed with the VA and said Veterans have no right to EAJA fees in the absence of an order from the Court demanding they perform as promised. This casts a pall over Veterans Justice. If the Court will not reimburse our attorneys for the correction of this type of injustice, they will invariably shy away from helping us knowing there is no money in it. Always remember, VA asked to strike a bargain with me for the JMPR. I agreed. Promises were made and gifts were exchanged. The BVA decided to renege on that agreement. That is really all this is about.
The call has gone out to my fellow NOVA attorneys seeking help.
Here is the CAVC remand: April 2013 JMPR to BVA
Here’ LawBob Squarepants argument for EAJA: Request for EAJA fees
Here’s the Davis abortion: Graham v McDonald ( Ex Writ EAJA fees)
I suspect the next stop is the Federal Circuit in search of a different interpretation of law. I sure don’t see Judge Davis or some of the others getting a case of remorse for hanging me out for 22 years.