UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-1452(E)

HELEN COLEMAN, APPELLANT,

V.

R.JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Application for Attorney Fees and Expenses

(Decided July 24, 2007 )

John F. Cameron, of Montgomery, Alabama, for the appellant. 

Paul J. Hutter, Acting GeneralCounsel; R. Randall Campbell, Assistant General Counsel; and

David L. Quinn, Deputy Assistant General Counsel, all of Washington, D.C., for the appellee.

Before HAGEL, MOORMAN, and DAVIS, Judges.

DAVIS, Judge: This case is before the Court on the appellant's November 9, 2006, application

filed through counsel for reasonable fees and expenses under the Equal Access to Justice Act (EAJA),

28 U.S.C. § 2412(d). In his response to the appellant's EAJA application, the Secretary challenges the

appellant's contention that his administrative and litigation positions were not substantially justified. Panel

considerationis required to determine whether the Secretary wassubstantiallyjustified, priorto the issuance

ofMayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) [hereinafter Mayfield II], in his positionthat

predecisional notification was unnecessary in order to satisfy notice requirements of the Veterans Claims

Assistance Act of2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096. For the reasons set forth below,

the Court will answer in the affirmative and deny the application.
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I. BACKGROUND

Ms. Coleman appealed from an April 28, 2003, Board decision denying her entitlement to

recognition as the veteran's surviving spouse for death benefit purposes. After briefing, but while this case

was still in chambers, the U.S. Court of Appeals forthe Federal Circuit (Federal Circuit) issued its decision

in Mayfield II. Neitherparty filed a citation of supplemental authority pursuant to Rule 30(b) of the Court's

Rules of Practice and Procedure (Rules) citing Mayfield II. 

In June 2006, this Court issued a single-judge decision affirming the Board decision. That decision

failed to address Ms. Coleman's single-sentence argument contending that an April 2002 VCAA-notice

letter was not mailed to her prior to a November 2001 VA regional office decision. On August 16, 2006,

followingreconsiderationwherein Ms. Coleman argued that the Board's decision wascontraryto Mayfield

II, this Court set aside the Board decision, finding that the Board impermissibly relied on postdecisional

documents in its determination that VA complied with the VCAA. 

OnNovember9, 2006, Ms. Coleman filed a timely EAJA application requesting fees inthe amount

of $12,577.43 and expenses in the amount of $141.10. Init, she argues that she should be awarded EAJA

fees because she is a prevailing party. She further contends that, because VA failed to provide timely

VCAA notice, the Secretary's position was not substantially justified. Ms. Coleman notes specifically that

the Secretary failed to move the Court to remand the appeal after issuance of Mayfield II and after she

filed a motion for reconsideration in this matter.

In response, the Secretary argues that a fee award is unwarranted because the Secretary's position

was substantially justified at both the administrative and litigation stages of the proceedings. He maintains

that, during both stages, it was common practice, even for this Court, to rely on postdecisional documents

to satisfy notice obligations. The Secretary states that only during the pendency of the appeal did the

Federal Circuit hold such reliance impermissible. 

II. ANALYSIS

A. Eligibility
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This Court has jurisdiction to award reasonable fees and expenses pursuant to 28 U.S.C.

§ 2412(d)(2)(B). EAJA fees may be awarded where the application was filed within the 30-day EAJA

applicationperiod set forth in 28 U.S.C. § 2412(d)(1)(B) and contains (1) a showingthat the appellant is

a prevailing party; (2) a showing that the appellant is a party eligible for an award because his net worth

does not exceed $2,000,000; (3) an allegationthat the Secretary's positionwas not substantially justified;

and (4) anitemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d)(1)(A), (1)(B),

(2)(B); Scarborough v. Principi, 541 U.S. 401, 407-08 (2004); Cullens v. Gober, 14 Vet.App. 234,

237 (2001)(enbanc). Ms. Coleman's EAJA application was timely filed and satisfiesthe EAJA-content

requirements. The Secretary makes no argument with respect to prevailing-party status or reasonableness

of fees requested; however, the Secretary maintains that, contrary to Ms. Coleman's contentions, his

position was substantially justified. 

B. Substantial Justification

Once an EAJA applicant alleges that the Secretary's position lacked substantial justification, the

burden shifts to the Secretary to show that the Government's position was substantially justified at both the

administrative and litigation stages of the matter in order to avoid paying EAJA fees. See Locher v.

Brown, 9 Vet.App. 535, 537 (1996). To meet this burden, the Secretary must demonstrate that, based

on "the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial

precedent," his position at the administrative and litigation stages of the proceeding were not dilatory and

had "a reasonable basis in law and fact." Stillwell v. Brown, 6 Vet.App. 291, 302 (1994) (quotingPierce

v. Underwood, 487 U.S. 552, 566 n.2 (1988)). Ms. Coleman concedes that the Secretary's position

during the administrative stage was substantially justified. See Appellant's Reply to Secretary's Response

at 2. The Court must therefore determine whether substantial justification existed for the Secretary's

litigation position.

The Court notes–and Ms. Coleman does not argue otherwise–that prior to Mayfield II, the

Secretary's positionwas substantially justified in the litigation stage. Before Mayfield II, it was common

practice not only to analyze the probative value of postdecisional documents, but also to rely on those

documentsto determine whetherthe VCAA notice provided was statutorily compliant; the acceptance of
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thepractice was reinforced in precedential decisions and a multitude of single-judge decisions ofthisCourt.

Indeed, the validity of reliance on postdecisional documents had not been questioned until the Federal

Circuitreviewed this Court's decision inMayfield v. Nicholson, 19 Vet.App. 103 (2006), rev'd, Mayfield

II, supra. Because in this case, the Secretary relied, before Mayfield II, on then-existing law, the Court

concludes that the Secretary acted reasonably duringthe pre-Mayfield II litigation stage. See Clemmons

v. West, 12 Vet.App. 245, 247 (1999) (rejecting the theory that the Secretary should have sought remand

prior to a change in caselaw because the Secretary "should have known" that a precedential case was

wrongly decided); see also Owen v. United States, 861 F.2d 1273, 1274-75 (Fed. Cir. 1988)(holding

that "government position [is] substantially justified when it [is] taken, based on precedents then standing,"

even though they are later overruled); Stillwell, 6 Vet.App. at 303 (recognizing that, when analyzing

substantial justification, "the evolution of VA benefits law since the creation of this Court [ ] has often

resulted in new, different, or more stringent requirements for adjudication").

Ms. Coleman places special emphasis, however, on the Secretary's failure to seek remand

following issuance of Mayfield II. The Court looks to the circumstances surrounding the resolution of the

dispute to determine whetherthe Secretary's position was substantially justified in the litigation stage. See

Dillon v. Brown, 8 Vet.App. 165, 168 (1995); Bowyer v. Brown, 7 Vet.App. 549, 553 (1995);

Carpenito v. Brown, 7 Vet.App. 534, 537 (1995). The length of time it took for the Secretary to take

corrective action is one factor in our determination. See Camphor v. Brown, 8 Vet.App. 272, 275-76

(1995) (awarding the appellant EAJA fees when the Secretary failed to take corrective action following

a change in caselaw that occurred three and a half months prior to the Court's decision); Penny v. Brown,

7 Vet.App. 348, 351 (1995) (finding the Secretary's position not substantially justified when the Secretary

failed to advise the Court of pertinent authority within nine months of the authority's issuance); see also

Pierre v. West, 12 Vet.App. 92, 96-97 (1998) (finding substantial justification where the Secretary sought

remand four months following a change in law); Bowyer, 7 Vet.App. at 553 (noting a reasonable delay

where the Secretary did not "drag his feet" in requesting remand one year after the change in law); cf.

Wisner, 12 Vet.App. at 334 (holding Secretary's litigation position substantiallyjustified where he moved

quickly for remand based on a change in caselaw during the litigation stage); Stillwell, 6 Vet.App. at 302
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(indicatingthatspeed and cooperation in resolving matter is one factor by which tomeasure reasonableness

of VA's litigation position). 

Here, this Court issued its decision on the merits on June 1, 2006. BetweenMayfield II's issuance

on April 5, 2006, and this Court's decision initially affirming the case, 57 days elapsed. The Court notes

the likelihood that the Secretary would not identify this case as one involving the Board's reliance on

postadjudicatory notice given the minimal attention devoted to thisissue inMs. Coleman's appellate brief.

Moreover, Ms. Colemancouched the issue as a failure-to-provide-predecisional-VCAA-notice argument

rather than an argument that the Board impermissibly relied on postdecisional notice. See Appellant's Brief

at 22. Based on the totality of the circumstances, and using Court caselaw as guidance, the Court

concludes that the Secretary's failure to identify this case as one affected by Mayfield II and to seek

remand within the 57-day period was reasonable. See Dillon, Pierre, and Bower, allsupra. 

Ms. Coleman additionally argues that the Secretary had an ethical obligation to advise the Court

of the change in law; we agree, and further note that there is also an obligation under this Court's Rules of

Practice and Procedure (Rules) to promptly advise the Court of significant supplemental authority after

briefs are filed. See U.S. VET.APP. R. 30(b). However, those obligations do not apply to the Government

alone. Ms. Coleman's own failure to identify this case as one implicating Mayfield II within the 57 days

followingits issuance andprior to this Court's order lends further credence to the Secretary's inaction within

that timeframe. 

As to Ms. Coleman's insistence that, following the filing of her motion for reconsiderationonJune

22, 2006, "the Secretary and General Counsel failed to concede" that reversal was appropriate in light of

Mayfield II, the Court finds the Secretary's silence justified. Appellant's Response to Appellee's Reply

to EAJA Application at 5 (emphasis in original). Under Rule 35(g) ofthis Court's Rules, the Secretary is

expressly prohibited from filing a response to the motion. See U.S. VET. APP. R. 35(g) ("No response to

a motion under this rule [(regarding motions for reconsideration)] may be filed unless it is requested by the

Court."). 

In sum, based on the totality of the circumstances, there is no suggestion that the Secretarydragged

his feet, departed from established policy to single out the appellant, or took any other action during the
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proceedings that would suggest his position was not substantially justified. See Stillwell, supra.

Accordingly, the Secretary has carried his burden to show that EAJA fees should not be awarded because

his position was substantially justified.

III. CONCLUSION

Upon consideration of the foregoing, the appellant's EAJA application is DENIED.