UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 99-368

W.T. SUMNER, APPELLANT,

 V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY,

HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.

O R D E R

In a November 6, 2001, en banc opinion, the Court denied the appellant's application for an

award of attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)

(EAJA), because the appellant is not a prevailing party under the EAJA. Sumner v. Principi,

15 Vet.App. 256, 264-65 (2001) (en banc). On November 27, 2001, the appellant filed, through

counsel, Clayte Binion, Esq., a timely motion for en banc reconsideration. Prior to any action by this

Court on his motion for reconsideration, the appellant, on December 27, 2001, filed, through a

different counsel, Kenneth Carpenter, Esq., a Notice of Appeal (NOA) to the United States Court

of Appeals for the Federal Circuit (Federal Circuit).

The appellant's filing of an NOA to the Federal Circuit divests this Court of all jurisdiction

over this case. See In re Bailey, 11 Vet.App. 348, 349 (1998) (per curiam order) (holding that filing

of NOA to Federal Circuit diveststhis Court of jurisdiction over respondent's motion for stay of this

Court's disciplinary order); Villamor v. West, 11 Vet.App. 193 (1998) (en banc order) (same as to

motion pending here for full Court review of single-judge decision); Cerullo v. Derwinski,

1 Vet.App. 195, 196 (1991) (stating that legal precedent is clear that filing of NOA confers plenary

jurisdiction upon appellate court). The Court thus lacks jurisdiction to review the appellant's

November 2001 motion for en banc reconsideration.

On consideration of the foregoing, it is

ORDERED that the appellant's motion for en banc reconsideration is dismissed for lack of

jurisdiction.

DATED: January 22, 2002 PER CURIAM.

KRAMER, Chief Judge, with whom HOLDAWAY and STEINBERG, Judges, join,

concurring: We concur in the dismissal for lack of jurisdiction of the appellant's motion for en banc
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reconsideration. We write separately, however, to explain why we would have voted to deny that

motion if the Court had not been divested of jurisdiction over it.

Initially, we note that, in the underlying appeal in this case, the appellant had received a

remand pursuant to Cerullo v. Derwinski, 1 Vet.App. 195 (1991). Sumner v. Principi, 15 Vet.App.

256, 257 (2001) (en banc). In denying the appellant's application for an award of attorney fees and

expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), the Court concluded,

with respect to the merits theory for attaining prevailing-party status under the EAJA, 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 264 (citing Buckhannon Bd. and Care Home,

Inc. v. West Virginia Dep't of Health and Human Res., 121 S. Ct. 1835, 1840-42 (2001), and Shalala

v. Schaefer, 509 U.S. 292, 302-04 (1993)). The Court held that the appellant had not attained

prevailing-party status because the remand in the underlying appeal in this case was not a Court

remand predicated upon administrative error. Id. at 265. In the appellant's motion for

reconsideration, he argues, inter alia, that because, subsequent to this Court's Cerullo remand of his

claim, a VA regional office (RO) awarded him service connection and a 10% disability rating, such

a post-Court remand decision by the RO resulted in the "'ultimate receipt of a benefit that was sought

in bringing the litigation'" and thus afforded him prevailing-party status. Motion at 3 (quoting

Sumner, 15 Vet.App. at 264). 

Nowhere in his motion does the appellant attempt to refute this Court's holding in Sumner

regarding the limitations to attaining prevailing-party status imposed by the Supreme Court.

Moreover, contrary to the appellant's assertions, an appellant in this Court may attain prevailingparty status based upon the "ultimate receipt of a benefit that was sought in bringing the litigation,"

Sumner, 15 Vet.App. at 264, only if the Court awards the appellant a benefit(s) in the underlying

merits decision or through termination proceedings pursuant to this Court's Rules of Practice and

Procedure. SeeU.S.VET.APP.R. 42; Buckhannon, 121 S. Ct. at 1840 (noting necessity for "judicial

imprimatur on the change" or "judicially sanctioned change in the legal relationship of the parties"

before prevailing-party status can be attained). Neither of those circumstances is present in the

instant case, and thus the appellant is not a prevailing party. Indeed, in the underlying appeal, the

Court remanded the case to permit the Board of Veterans' Appeals (Board or BVA) to carry out the

reconsideration that the Board Chairman had indicated that the BVA would provide; the appellant

left this Court without any Court award of a benefit and without any Court determination of Board

error. 

Moreover, we note that after the Sumner opinion was issued by this Court, the United States

Court of Appeals for the Federal Circuit issued its opinion in Scarborough v. Principi, 273 F.3d

1087, 1092 (Fed. Cir. 2001), in which it held that an appellant must show prevailing-party status

within the 30-day EAJA jurisdictional filing period, 28 U.S.C. § 2412(d)(1)(B). In the instant case,

the RO award of service connection occurred more than 14 months after that 30-day period had

expired. Thus, even assuming, contrary to the preceding paragraph, that the "ultimate receipt of a

benefit," Sumner, 15 Vet.App. at 264, need not be awarded by the Court, it would have been
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impossible for the appellant in the instant case to have shown such receipt prior to the expiration of

that 30-day period. See Scarborough, 273 F.3d at 1090 (EAJA applicant "shall" submit application

"showing [inter alia] that the applicant is a 'prevailing party'"). 

For the foregoing reasons, we would have voted to deny the appellant's motion for en banc

reconsideration.