Designated for electronic publication only

	UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

	No. 98-2272

	Robert J. Castellini, Petitioner,

	v.

	Togo D. West, Jr.,

	Secretary of Veterans Affairs, Respondent.

	Before GREENE, Judge.

	O R D E R

	Note:  Pursuant to U.S. Vet. App. R. 28(i),

	this action may not be cited as precedent.

	On December 10, 1998, Mr. Castellini, through counsel, filed a petition for extraordinary

relief, alleging that the Newark, New Jersey, VA Regional Office (RO) had unreasonably delayed

the adjudication of his claims, and had otherwise failed to reply to inquiries concerning his claims

for Department of Veterans Affairs (VA) benefits.  A December 21, 1998, Court order directed the

Secretary to respond to the petition.  After considering the evidence presented in the petition and the

responses, including Mr. Castellini's reply to the Secretary's response, the Court determined that the

action sought by the petition had been accomplished and on March 9, 1999, dismissed the petition

as moot.  The Court also denied Mr. Castellini's construed motion to amend the petition.  

	On April 2, 1999, Mr. Castellini, through counsel, filed an application for attorney fees and

expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).  Although the

petition was dismissed as moot, Mr. Castellini maintains in his EAJA application that he is entitled

to EAJA fees as a prevailing party because his petition for extraordinary relief prompted the

Secretary to perform the actions sought in the petition.  The Secretary opposes the EAJA application. 

The Secretary argues, inter alia, that (1) the petitioner is not a prevailing party and (2) that the

Secretary's administrative and litigation positions were substantially justified regarding whether the

petitioner was entitled to the extraordinary relief sought in his petition.  He asserts that the catalyst

theory upon which Mr. Castellini and his counsel rely does not survive the Supreme Court's decision

in Farrar v. Hobby, 506 U.S. 103, 113 (1992).  Alternatively, the Secretary contends that if the catalyst theory is applicable,  Mr. Castellini's petition did not serve as a catalyst to achieve the action

sought in the petition for extraordinary relief.

	The EAJA provides in pertinent part:  "Except as otherwise specifically provided by statute,

a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party . . .

unless the court finds that the position of the United States was substantially justified or that special

circumstances make an award unjust."  28 U.S.C. § 2412(d)(1)(A).  To be considered a "prevailing

party," the litigant must demonstrate that he prevailed (1) by succeeding on the merits; (2) as a result

of the suit's "catalytic effects"; or (3) by application of the "inevitable victory" test.  Weierbach v. West, 12 Vet.App. 486, 487 (1999) (citing Chandler v. Gober, 11 Vet.App. 6, 8 (1997)).  Further, an EAJA applicant has the burden of showing prevailing party status to the Court.  Chandler, 11 Vet.App at 7-8; see also Lematta v. Brown, 8 Vet.App. 504, 507 (1996) (citing Environmental Defense Fund, Inc. v. Watt, 554 F. Supp. 36 (E.D.N.Y. 1982), aff'd, 722 F.2d 1081 (2d Cir. 1983)).

	Mr. Castellini, through counsel, contends that he is a prevailing party under the catalyst

theory because his petition for extraordinary relief prompted the RO to act on his claims and

inquiries in 1999, actions that the Court concluded mooted the petition.  This contention may prevail

if indeed his petition prompted the Secretary "to take action to meet plaintiff's claims . . . despite the

lack of judicial involvement in the result."  Lematta, 8 Vet.App. at 509 (quoting Guglietti v. Secretary of HHS, 900 F.2d F.2d 397, 401 (1st Cir. 1990)).  Under the catalyst theory, Mr. Castellini must show:  "(1) a causal connection between the litigation and the relief obtained, and (2) that the

fee-target did not act gratuitously" in granting him relief.  Guglietti, 900 F.2d at 400; see also Lematta, 8 Vet.App. at 509 (citing Herren v. City of Jamestown, KY, 39 F.3d 628, 631 (6th Cir. 1994) (describing first element of catalyst theory as a determination of whether the lawsuit was a

"necessary and important factor" in achieving the desired result)).  Although the timing of events

during a lawsuit can be significant in determining if the lawsuit had a catalytic effect, for purposes

of establishing prevailing party status under the EAJA, the "'mere existence of a temporal

coincidence . . . cannot alone suffice' to engage the gears of the catalyst test."  Weierbach, 12 Vet.App. at 488 (quoting Langston v. Johnston, 928 F.2d 1206, 1225 (1st Cir. 1991) (quoting Martinez v. Rhode Island Housing & Mortgage Finance Corp., 628 F. Supp. 996, 1001 (D.R.I. 1986))).

	In Weierbach the Court specifically rejected the Secretary's argument that the catalyst theory does not survive Farrar and held that it is a valid theory for establishing EAJA prevailing party status in this Court.  See Weierbach, 12 Vet.App. at 488.  Therefore, the Secretary's alternate position that Mr. Castellini's filing of the petition for extraordinary relief was not a catalyst that prompted the

RO's actions will be examined.

	Here, Mr. Castellini has not shown that he is a prevailing party under the catalyst theory or

any other theory.  The evidence presented by the parties reveals that the RO was acting on Mr.

Castellini's claims and inquiries before and after  the petition was filed.  See Respondent's Exhibit (Ex.) at 75-78, 80-81, 117, 89 124-25.  Also, the evidence reveals that Mr. Castellini already had

received one of the responses requested in the petition seven months before the petition was filed

and apparently did not inform his counsel. Respondent's Ex. at 73-78.  Further, counsel's argument

that the petition was the material factor and the only reason for VA's actions is not supported by the facts.  The facts indicate that in a November 3, 1999, letter to the Regional Director, counsel

requested the same action as requested in the petition.  Without a doubt, this was a correct measure

to take if it was perceived that the RO was being unreasonable in processing the veteran's claims. 

See generally Erspamer v.  v. Derwinski, 1 Vet. App. 3, 9 (1990) (mandamus petitioners must show . . . . . . they lack adequate alternative means to obtain the relief they seek).  However, there is no evidence

that VA was acting unreasonably or arbitrarily.  Indeed, given the many inquiries from Mr.

Castellini's counsel that the Regional Director was asked to consider, even those to which Mr.

Castellini had the answer, it could be reasonably expected that a complete response could not have

been made before the petition was filed some 35 days later.

	In order to be awarded EAJA fees and expenses, a determination of prevailing party also

requires a finding of a nexus between the filing of the lawsuit, here Mr. Castellini's petition, and the

substantial achievement of his goals.There is no such nexus.  The circumstances are coincidental.  What has been shown is that Mr. Castellini's counsel filed a petition thirty five days after asking for

the Regional Director's assistance in resolving a perceived delay in the processing of Mr. Castellini's

claims.  Although the petition for extraordinary relief must demonstrate that administrative remedies

are not available to provide the relief requested, to seek administrative action and not afford a

reasonable opportunity for response before filing the petition makes the petition premature.  Here,

there is ample evidence that the claims in question had been adjudicated or were being developed

and that Mr. Castellini, but not counsel, had received notice on benefit payments well before the

filing of the petition.  Under the circumstances, the filing of the petition is temporally coincidental

with the RO actions and such events do not provide the nexus to qualify Mr. Castellini as a

prevailing party.  See Weierbach and Chandler, both supra; see also Tucson Medical Center v. Sullivan, 947 F.2d 971, 982-83 (D.C. Cir. 1971).  

	On consideration of the foregoing, it is

	ORDERED that the Mr. Castellini's EAJA application is DENIED.

DATED:  June 96, 2000  							BY THE COURT:

								WILLIAM P. GREENE, JR.

								Judge

Copies to:

Kenneth M. Carpenter, Esq.

P.O. Box 2099

1525 S.W. Topeka Blvd.

Topeka, Kansas  66601-2099

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC  20420