**UNITED STATES COURT OF VETERANS APPEALS**

No. 97-2098

[William E. Heath, Petitioner,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Respondent]{.smallcaps}.

On Petitioner\'s Application for Attorney Fees and Expenses

(Decided August 31, 1998 )

*Jeffrey Wood* was on the pleadings for the petitioner.

*John H. Thompson*, Acting General Counsel; *Ron Garvin*, Assistant
General Counsel; *Carolyn F. Washington*, Deputy Assistant General
Counsel; and *Gregory W. Fortsch* were on the pleadings for the
respondent.

Before KRAMER, FARLEY, and STEINBERG, *Judges*.

KRAMER, *Judge*: On November 19, 1997, counsel for the petitioner filed
a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus,
alleging that the Secretary was wrongfully withholding \$10,171.00 owed
to the appellant. The Court denied the petition by order on February 24,
1998. Issues with respect to the appellant\'s application for attorney
fees and expenses under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412(d), are the subject of this opinion. For the reasons
that follow, the Court will dismiss the EAJA application for lack of
jurisdiction.

**I. RELEVANT BACKGROUND**

The Secretary withheld \$18,565.80 from an award of past-due benefits
made to the petitioner based upon a June 27, 1996, VA regional office
decision pending determination of appropriate attorney\'s fees by the
Board of Veterans\' Appeals (BVA or Board). Pursuant to a December 12,
1996, Board decision, \$8,394.80 was subsequently awarded and paid to
the petitioner\'s attorney. The petitioner\'s attorney allowed the
December 12, 1996, Board decision to become final. The petitioner\'s
counsel sent letters to VA on August 11, 1997, and October 10, 1997,
asking for the balance of the monies withheld (\$10,171.00) to be
released to the petitioner. The Secretary did not respond. On November
19, 1997, counsel for the petitioner filed a Petition for Extraordinary
Relief in the Nature of a Writ of Mandamus asking that the Court order
the Secretary to pay the petitioner the balance owed. Pursuant to Court
orders of December 2, 1997, and January 15, 1998, the Secretary filed
responses to the petition on January 5 and February 6, 1998. The
Secretary\'s responses, supported by detailed accounting statements,
demonstrate that, due to a clerical error, in June 1997 the petitioner
was mistakenly overpaid by \$40,389.00 in connection with the June 1996
decision, that he was promptly made aware of this mistake, that he
cashed the erroneous check despite warnings not to do so, and that he
had not returned the overpayment. The Secretary further averred that on
January 5, 1998, the amount withheld as potential attorney\'s fees was
offset against the amount owed by the petitioner resulting from that
overpayment. The Secretary also explained that \$1,183.00 per month was
being withheld from the petitioner\'s current benefits to offset the
overpayment. *See* 38 U.S.C. § 5314; 38 C.F.R. §§ 1.911, 1.912a (1997).
Also attached to the response was a letter dated December 31, 1997,
which notified the veteran that the \$10,365.20 owed to him would be
credited to the amount he owed to VA.

On February 24, 1998, the Court denied the petition. On March 24, 1998,
the petitioner filed an EAJA application seeking EAJA fees and expenses
and claiming that the petition was a catalyst for the Secretary\'s
January 5, 1998, crediting of \$10,171.00 against the petitioner\'s debt
to VA.

**II. ANALYSIS**

A. The Court\'s Jurisdiction over the Petition

Although the petition in this case was denied on the merits, the Court
should have dismissed it for lack of jurisdiction. As an initial matter,
therefore, the Court must consider its authority to revisit its
jurisdiction to issue its preliminary orders of December 1997 and
January 1998 and its February 1998 order denying the petition. A Court
always has the right, in fact the obligation, to examine its
jurisdiction, even if it had earlier improperly asserted its
jurisdiction. The law-of-the-case doctrine does not bar reconsideration
of jurisdictional issues.

> The \[law-of-the-case\] doctrine is not . . . an \"inexorable
> command,\" \[*In re United States Steel Corp*., 479 F.2d 489, 493‑94
> (6th Cir. 1973)\], and there are a number of well-recognized reasons
> not to apply it. *See Messenger v. Anderson*, 225 U.S. 436, 444 . . .
> (1912) (doctrine \"merely expresses the practice of courts generally
> to refuse to reopen what has been decided\" and is \"not a limit to
> their power\"). *The law of the case doctrine does not foreclose
> reconsideration of subject matter jurisdiction.* *See Potomac
> Passengers Ass\'n v. Chesapeake & Ohio Ry. Co.*, 520 F.2d 91, 95 n.22
> (D.C. Cir. 1975). A jurisdictional matter can be raised at any stage
> of a judicial proceeding by any party or by the Court on its own
> motion. *Fugere v. Derwinski,* 972 F.2d 331, 334 n.5 (Fed. Cir. 1992).
> In fact, a federal court has the duty to determine its jurisdiction
> sua sponte even where the issue has not\--as it has here\--been raised
> by the parties. *See, e.g., Basso v. Utah Power & Light Co.*, 495 F.2d
> 906, 909 (10th Cir. 1974), *citing Atlas Life Ins. Co. v. W.I.
> Southern Inc.*, 306 U.S. 563 . . . (1939). Lack of jurisdiction
> \"cannot be waived and jurisdiction cannot be conferred upon a federal
> court by consent, inaction or stipulation.\" *Basso*, 495 F.2d at 909,
> *citing California v. LaRue*, 409 U.S. 109, 112 n.3 . . . (1972).

*Johnson v. Brown*, 7 Vet.App. 25, 27 (1994) (emphasis added). Although
*Johnson* can be read as relying, in not following the law-of-the-case
doctrine, on an intervening change of law (which is, of course, a
different exception not implicated by the facts here), the above-quoted
passage is unambiguous and dispositive on the issue of the application
of the law-of-the-case doctrine to questions regarding the Court\'s
jurisdiction. Accordingly, the Court concludes that it can properly
revisit its jurisdiction to consider the petition on the merits and, for
the following reasons, holds that such jurisdiction did not exist for
the Court to reach the merits of the petition.

Pursuant to the All Writs Act (AWA), \"all courts established by Act of
Congress may issue all writs necessary or appropriate *in aid of their
respective jurisdiction*.\" 28 U.S.C. § 1651(a) (emphasis added).
\"\[J\]urisdiction to issue a writ of mandamus pursuant to the AWA
relies upon not ***actual*** jurisdiction but ***potential***
jurisdiction.\" *In the Matter of the Fee Agreement of Cox*, 10 Vet.App.
361, 370 (1997) (*Fee Agreement of Cox I*), *vacated on other grounds*,
\_\_ F.3d. \_\_, No. 97‑7002 (Fed. Cir. July 16, 1998) (*Fee Agreement
of Cox II*). This Court\'s basic jurisdiction under chapter 72 of title
38, U.S. Code, is limited to reviewing final decisions of the BVA;
therefore, \"if the Court\'s granting of the petitioner\'s petition
\[for a Court-ordered VA adjudicative decision\] would lead to a BVA
decision over which the Court would have jurisdiction, the Court would
possess jurisdiction to issue a writ of mandamus\". *Id*. at 371; *see*
*In the Matter of the Fee Agreement of Wick*, 40 F.3d 367, 373 (Fed.
Cir. 1994) (Court of Veterans Appeals has jurisdiction under AWA where
it would otherwise \"be prevented or frustrated from exercising its
statutorily granted jurisdiction over a Board decision\" but \"is not
vested with original jurisdiction . . . to compel payment\" of an
attorney\'s fee). Thus, under *Fee Agreement of Cox I* and *Fee
Agreement of Wick*, the Court lacked jurisdiction to grant the writ
ordering the relief sought and should have dismissed it accordingly.
*See* *Fee Agreement of Cox I* and *Fee Agreement of Wick*, both
*supra*. In this regard, the Court notes that if the petitioner had
petitioned the Court to order VA to adjudicate his claim, that would
have been an entirely different matter. *See Fee Agreement of Cox II*,
\_\_ F.3d at \_\_, slip op. at 6; *Fee Agreement of Cox I*, 10 Vet.App.
at 371. However, he did not so petition. Although a claimant seeking the
benefit of the administrative process may rightfully invoke our AWA
power, he or she may not do so to obtain a merits decision from us.
*See* *Fee Agreement of Cox I*, 10 Vet.App. at 375-76. To quote from the
Federal Circuit\'s recent *Fee Agreement of Cox II* decision: \"It is
well established that the AWA does not expand a court\'s jurisdiction.\"
*Fee Agreement of Cox II*, \_\_ F.3d at \_\_, slip op. at 7.
Furthermore, as the Federal Circuit quoted from the Supreme Court, the
\"traditional use of the writ in aid of appellate jurisdiction both at
common law and in the federal courts has been to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel
it to exercise its authority when it is its duty to do so.\" *Roche
v. Evaporated Milk Ass\'n*, 319 U.S. 21, 26 (1943) (quoted in *Fee
Agreement of Cox II*, \_\_ F.3d at \_\_, ­­slip op. at 8). Therefore,
there is no basis under the AWA or the Court\'s basic jurisdictional
statute for this Court to assume the role of adjudicator in the first
instance.

B. The EAJA Application

In *Bazalo v. Brown*, 9 Vet.App. 304, 308 (1996) (en banc), *rev\'d on
other grounds sub nom*. *Bazalo v. West*, \_\_ F.3d \_\_, No. 97-7060
(Fed. Cir. Aug. 6, 1998), the Court held that an EAJA applicant must
submit an application, within the statutory 30-day filing period, that
meets each of the jurisdictional requirements set forth in
28 U.S.C. § 2412(d)(1)(B). \"\[T\]he requirements for a complete,
non-defective EAJA application are: (1) a showing that the
\[petitioner\] is a prevailing party; (2) a showing that the
\[petitioner\] is eligible for an award \[because his net worth does not
exceed two million dollars\]; (3) an allegation that the government\'s
position is not substantially justified; and (4) an itemized statement
of the fees sought.\" *Bazalo*, 9 Vet.App. at 308; *see Lematta
v. Brown*, 8 Vet.App. 504, 507 (1996). Of the enumerated elements, the
only one that the Secretary has expressly addressed in his response is
whether the petitioner was a prevailing party within the meaning of the
statute. The petitioner claims prevailing party status because he
asserts that his petition was a catalyst in prompting the Secretary to
credit the \$10,171.00 against the petitioner\'s debt. *See* *id.* at
509. The Secretary disputes this assertion by arguing that the crediting
of the amount owed against the debt was not the relief that the
petitioner sought and that it was a mere temporal coincidence that it
occurred shortly after the petitioner filed his petition. *See*
*Chandler v. Gober*, 11 Vet.App. 6, 8 (1997). The Court will not resolve
this dispute because it will, instead, dismiss the petitioner\'s
application for lack of jurisdiction on other grounds.

The EAJA statute provides that:

> a court shall award to a prevailing party other than the United States
> fees and other expenses . . . incurred by that party in any civil
> action . . . , brought by or against the United States in any court
> *having jurisdiction of that action*, unless the court finds that the
> position of the United States was substantially justified or that
> other special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added). The implication of the
emphasized language is that a Court may not award EAJA fees unless it
had jurisdiction to award the relief requested during the merits
litigation. In fact, the Court can find no holding by any court that
EAJA fees are available where the court lacked jurisdiction over the
merits of the claim. *See* *Finn v. United States*, 856 F.2d 606, 608
(4th Cir. 1988); *Rodonich v. House Wreckers Union, Local 95*, 837
F.Supp. 550, 562 (S.D.N.Y. 1993), *rev\'d on other grounds* *sub nom*.
*Rodonich v. Senyshyn*, 52 F.3d 28 (2d Cir. 1995); *cf.* *Keene Corp.
v. Cass*, 908 F.2d 293, 297-98 (8th Cir. 1990) (lack of subject-matter
jurisdiction under 42 U.S.C. § 1983 precludes award of attorney fees
under 42 U.S.C. § 1988; *Latch v. United States*, 842 F.2d 1031, 1033
(9th Cir. 1988) (district court not empowered to award attorney fees
under 26 U.S.C. § 7430 where it lacked subject matter jurisdiction over
underlying tax claim); *Toth v. United Auto., Aerospace and Agric.
Implement Workers of Am.*, 743 F.2d 398, 405 (6th Cir. 1984) (\"any
judgment of recovery (including an attorneys\' fees award) \[must\] be
grounded in subject-matter jurisdiction\"). Although the above-cited
cases appear to deny the claims for attorney fees on the merits, we
believe the better course in this case is to dismiss the petitioner\'s
application for lack of jurisdiction. Just as the AWA does not add to
the statutory jurisdiction provided the Court by 38 U.S.C. § 7252(a),
*see* *Fee Agreement of Wick* and *Fee Agreement of Cox I*, both
*supra*, the Court holds that the EAJA does not add to the jurisdiction
of the Court. *Cf.* *Latch*, 842 F.2d at 1033 (\"it is apparent that
26 U.S.C. § 7430 \[the attorney fees statute for tax claims\] does not
contain an independent grant of subject matter jurisdiction\"). As the
language of the EAJA makes clear, jurisdiction is a prerequisite to, not
a product of, its application. Hence, because the Court lacked
jurisdiction to award the relief requested in the petitioner\'s
petition, it also lacks jurisdiction to consider an EAJA application
filed in connection with that petition. Therefore, the petitioner\'s
EAJA application must be dismissed.

**III. CONCLUSION**

Upon consideration of the foregoing analysis and the pleadings of the
parties, the petitioner\'s application for reasonable attorney fees and
expenses under the EAJA is DISMISSED.