The Court of Appeals for Veterans Claims and the Equal Access to Justice Act

On August 18, 2020, the Court of Appeals for Veterans Claims (CAVC) decided Lacey v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1565, finding the Government’s litigation position in Lacey v. Wilkie, 32 Vet. App. 71 (2019), unreasonable.

In the first round of Lacey litigation, CAVC found VA erred when denying Appellant Veterans Retraining Assistance Program (VRAP) benefits. Appellant sought to use VRAP benefits at a 4-year college in pursuit of a bachelor’s degree, but VA held VRAP was limited to use at a community college or technical school. But Congress didn’t require classes be taken at a community college, just that a veteran took classes offered at a community college or technical school. So VA had incorrectly interpreted the statute establishing VRAP.

After succeeding in the initial litigation, Appellant, through counsel, filed for fees under the Equal Access to Justice Act (EAJA). The EAJA provides that the federal government is liable for attorney’s fees in certain circumstances, like when it takes an unreasonable position in VA adjudications or litigation. The EAJA helps deter government overreaching, and encourages attorneys to advocate on behalf of veterans, even if the veteran cannot pay out of pocket for an attorney.

So by finding the Government’s position unreasonable in the second round of Lacey litigation, the Court found Appellant entitled to EAJA fees. The case was not as clear cut as this short blog post makes out, though. Normally, in the case of first impression, CAVC will not find VA’s litigation position unreasonable. And there was no clear precedent from the Court interpreting VARP at the time of VA’s actions. Nonetheless, CAVC found on the totality of the circumstances, the VA’s position was unreasonable, and Appellant was entitled to EAJA fees.

There are a few lessons to be learned in this opinion. First, veterans who cannot afford an attorney shouldn’t be shy about contacting one. Often times, an attorney may take the case on the hope they will be able to collected fees under EAJA. Second, EAJA litigation is hard to predict, and parties, both Appellants and the Government should be wary about overplaying their hand. The Government should have been willing to negotiate with Appellant about the EAJA fee, even if there was some doubt he would prevail. Further, as the second Lacey opinion lays out, CAVC did not decide whether the amount claimed by Appellant is reasonable. The Court could have so found, but chose not to. This indicates they may consider it too high of a request, and they hope the parties can settle the dispute without wasting more of the Court’s time.