             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                                  No. 15-3191(E)

                                     CATHERINE CORNELL, APPELLANT,

                                                        V.

                                         ROBERT L. WILKIE,
                              SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                                             BOBBY S. MOBERLY,
                                                INTERVENOR.

                      On Intervenor's Application for Attorney Fees and Expenses

       Before DAVIS, Chief Judge, and GREENBERG and ALLEN, Judges.

                                                   ORDER

        Before the Court is intervenor Bobby S. Moberly's July 6, 2018, application pursuant to
the Equal Access to Justice Act (EAJA),1 for an award of attorney fees and expenses in the amount
of $13,661.17. The Court has jurisdiction to award reasonable attorney fees and expenses to a
prevailing party unless the Secretary's position was substantially justified or special circumstances
make an award unjust.2 The Secretary challenges Mr. Moberly's application, contending that he is
not a prevailing party and that the Secretary's position was substantially justified. The Secretary
does not challenge the EAJA application on any other basis.

        Although no party requested a precedential decision, a judge of this Court referred this case
to panel primarily to consider two questions: (1) Whether the Court had jurisdiction to issue its
announcement from the bench precluding the Secretary from recouping a payment made to Mr.
Moberly, and (2) whether that announcement and the confirmatory passage in the Court's opinion
altered the legal relationship between Mr. Moberly and the Secretary in such a manner as to make
him a prevailing party. The Court first holds that it had jurisdiction to issue the bench order
precluding recoupment. Additionally, because the Court concludes that Mr. Moberly is a
prevailing party, and that the Secretary's position was not substantially justified, the Court will
grant Mr. Moberly's EAJA application in full.




       1
           28 U.S.C. § 2412(d).
       2
           See 28 U.S.C. §§ 2412(d)(2)(A), (F).
                                            I. BACKGROUND
       A.         Dual payments to attorney Cornell and Mr. Moberly raised questions of
                  administrative error.

       The procedural background at the administrative level is well detailed in the Court's
opinion in the underlying appeal,3 and we will only briefly summarize it here. Attorney Cornell
represented Mr. Moberly before this Court and before VA in his claims for disability compensation
for hearing loss and tinnitus. When VA granted service connection for those conditions, it paid
attorney Cornell a fee from Mr. Moberly's past due benefits according to a fee agreement. Attorney
Cornell then wrote a letter to Mr. Moberly stating that she was closing his file because there was
nothing further she could do for him.

        Mr. Moberly subsequently retained the Disabled American Veterans (DAV) as his counsel
and DAV filed a claim on his behalf for total disability on the basis of individual unemployability
(TDIU). Apparently, VA failed to alter its records to reflect the properly filed notice of the change
in representation. After granting Mr. Moberly's claim for TDIU, VA sent a second payment, in the
amount of $20,304.16, from the past due benefits for TDIU to attorney Cornell, based on the earlier
fee agreement.

        DAV then filed on Mr. Moberly's behalf a Notice of Disagreement (NOD) with the
summary of the case awarding attorney fees to attorney Cornell. The NOD stated that because
attorney Cornell was no longer Mr. Moberly's appointed representative, she was not entitled to
fees associated with the TDIU claim.

        After reviewing the NOD and the case file, VA sent attorney Cornell a letter in which the
Secretary "acknowledged that we made an error in disbursement of the funds [attorney Cornell]
received,"4 and that she was not entitled to the fee payment. Attorney Cornell filed an NOD with
that determination and VA issued a Statement of the Case maintaining its decision that attorney
Cornell was not entitled to the fee payment.

       On April 27, 2015, the Board issued a decision also concluding that the payment to attorney
Cornell was improper, and she appealed that decision to this Court. During the pendency of that
appeal, VA paid to Mr. Moberly the $20,304.16, duplicating the previous payment to attorney
Cornell.

       B.         The Court held that the attorney fee dispute constituted a simultaneously
                  contested claim and that Mr. Moberly filed a timely NOD in that dispute.
        In a December 2016 decision, the Court stated that the issues on appeal were "whether the
direct fee agreement dispute constituted a simultaneously contested claim pursuant to 28 U.S.C.
§ 7106A, and if so, whether Mr. Moberly filed a timely [NOD]."5 The Secretary conceded that the
Board had erred in determining that the fee dispute did not constitute a simultaneously contested

       3
           Cornell v. McDonald, 28 Vet.App. 297 (2016).
       4
           Record (R.) at 228.
       5
           Cornell, 28 Vet.App. at 298.



                                                          2
claim, and the Court set aside that Board finding. 6 Attorney Cornell also conceded that Mr.
Moberly filed a timely NOD with the initial VA decision to award her fees from the TDIU award.

        Mr. Moberly moved to intervene in the appeal, with the support of the Secretary, and the
Court granted the motion. When attorney Cornell learned of the payment to Mr. Moberly, she filed
a Solze notice, 7 which contained an argument that Mr. Moberly had no further interest in the
outcome of the appeal. Mr. Moberly filed a response in which he argued that "unless the Secretary
waives his right to recoup any payment to Appellant [Cornell] ordered as a result of this appeal,
… [he] (unfortunately) retains a very real interest in this matter."8 Approximately 1 month later,
attorney Cornell moved the Court to remove Mr. Moberly as an intervenor, arguing that no
recoupment could be sought from him on a payment based on administrative error. Mr. Moberly
responded that attorney Cornell's analysis was merely an argument of counsel, and until the
Secretary agreed that it would not seek recoupment from him, he had a continuing interest in the
appeal. The Court denied attorney Cornell's motion based on the possibility of recoupment from
Mr. Moberly.

        After hearing oral argument in the underlying case, the Court took the somewhat unusual
step of announcing from the bench that, regardless of the Court's ultimate decision on the merits
of the appeal, the Secretary was precluded from recouping any of the payment made to Mr.
Moberly. In its published opinion, the Court made the following statement on recoupment:

       [T]he Court will affirm the Board's conclusion that VA’s payment of $20,304.16 in
       attorney fees to Ms. Cornell was improper. Based on this holding and as ruled on
       from the bench at oral argument, VA may not recoup payment of the fees from Mr.
       Moberly. 38 U.S.C. § 5314 (authorizing the Secretary to recoup overpayments
       made to a benefits recipient by offsetting future payments). The Secretary,
       however, may take all appropriate steps to recover the indebtedness from Ms.
       Cornell. 38 U.S.C. § 5316 (authorizing the Secretary to sue to collect certain
       debts).[9]

The Federal Circuit affirmed the Court's decision without comment.10 After judgment and mandate
issued, Mr. Moberly sought EAJA fees for his participation in the underlying appeal.

                                    II. THE PARTIES' ARGUMENTS
   A. The Secretary disputes whether Mr. Moberly is a prevailing party.
        The Secretary argues that Mr. Moberly is not a prevailing party. He asserts that there was
no alteration in the legal relationship between himself and Mr. Moberly. "The appellate litigation


       6
           Id. at 305.
       7
           See Solze v. Shinseki, 26 Vet.App. 299, 301 (2013).
       8
           Intervenor's Response to Appellant's Solze Notice at 3.
       9
           Cornell, 28 Vet.App. at 308.
       10
            Cornell v. Wilkie, 718 Fed. App'x 972 (Fed. Cir. 2018).



                                                          3
of this claim ended just as it began," the Secretary reasons, "with a finding that it was the
Intervenor, not Appellant, who is entitled to the disputed funds."11
         Mr. Moberly responds that he obtained the specific legal relief he sought by intervention,
that is, a Court order prohibiting the Secretary from recouping any disputed funds from him. He
reasons that before the Court's order the Secretary steadfastly maintained that recoupment from
him was a possibility, but after the Court's order the Secretary could not do so. Therefore, he
concludes, the Court order altered the legal relationship between himself and the Secretary.
    B. The Secretary and Mr. Moberly dispute the Court's jurisdiction to issue the bench
       announcement on recoupment.
        The Secretary contends that the only issue over which the Court had jurisdiction in the
underlying appeal was who was entitled to the disputed funds. He asserts that the appeal included
no issue as to the Secretary's potential recoupment authority should the Court hold that Ms. Cornell
was entitled to all or some portion of the disputed funds.12

        The Secretary further characterizes the Court's conclusion about recoupment in its written
opinion as a mere corollary to its decision on the appellate issue of entitlement to the disputed
funds, and argues that it represents no alteration in the legal relationship between the intervenor
and the Secretary. To the extent that the Court's bench ruling assayed to prevent recoupment from
the intervenor, regardless of the ultimate decision on the merits, the Secretary argues that the Court
was without jurisdiction to reach that issue and the Court's bench ruling is a nullity.

        By contrast, Mr. Moberly contends that "[n]othing in the Secretary's arguments explains
how the Court lacks jurisdiction to issue relief involving the same legal interest that conveyed
standing to participate [as an intervenor]." 13 He further notes that the Secretary preserved no
objection to the Court's order on recoupment at the time it issued from the bench, the Secretary did
not raise an objection or seek reconsideration upon the inclusion of the recoupment order in the
Court's opinion, and the Secretary did not raise the issue during the appeal at the Federal Circuit.
He concludes that the Secretary's opportunity to challenge the Court's jurisdiction on the
recoupment issue has passed.
    C. The parties disagree whether the Secretary's position was substantially justified.
        In a similar vein, the Secretary argues that his position on possible recoupment from Mr.
Moberly was substantially justified. He reasons that before recoupment could be considered, a
valid debt would have to exist, which could only be grounded on a Court ruling that attorney
Cornell was entitled to all or some portion of the disputed funds. In that eventuality, the Secretary
argues, he would be statutorily required to seek recoupment unless he elected to waive the
indebtedness. As to any potential waiver, he contends that consideration of that issue would have
been premature. He concludes that because the Court upheld its administrative and litigation
positions on entitlement to the disputed funds, his position was, at both stages, substantially
justified.

        11
             Secretary's Response to EAJA Application at 5.
        12
            See Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir. 2002) ("[A]ttorney discharged during a case is
entitled only to a fee reflecting [her] contribution to the litigation.").
        13
             Intervenor's Response to Secretary's Opposition to EAJA Application at 4.



                                                          4
        Both the appellant and intervenor have argued, however, that if the Court had held that all
or any portion of the payment to Mr. Moberly rightfully belonged to attorney Cornell, the payment
or overpayment to Mr. Moberly would have constituted an administrative error without fault on
the part of Mr. Moberly. They conclude that such an administrative error would have precluded
the creation of any valid indebtedness of Mr. Moberly and, therefore, recoupment was not possible.
In his brief in the underlying appeal, Mr. Moberly argued on this basis that the Court should issue
an order prohibiting future recoupment from him.14


                                                   III. ANALYSIS
    A. The Secretary's challenge to the Court's jurisdiction to issue the announcement from
       the bench fails.

        As a threshold matter, it is not clear that at this stage of proceedings the Secretary may
raise his challenge to the Court's jurisdiction to issue its bench order. The Secretary neither
objected to the Court's bench ruling during oral argument, nor moved for reconsideration on that
issue after the Court issued its opinion, nor raised the matter before the Federal Circuit during the
appeal of the underlying decision.15

       The Secretary cites Young v. Shinseki16 for the proposition that a jurisdictional challenge
may be raised at the EAJA stage. He argues that the EAJA decision is simply part of an "integrated
whole" of the underlying appeal. This argument ignores the fact that this case, unlike Young,
proceeded to an appeal before the Federal Circuit. The finality of that decision ended the matter of
the underlying appeal concerning entitlement to the disputed payment of fees to attorney Cornell.
Therefore, the challenge to the Court's jurisdiction to make its bench announcement may be an
impermissible collateral attack on a decision that is final.17

     In any event, the Court concludes that it had jurisdiction over the issue of recoupment from
Mr. Moberly, and the bench announcement was entirely proper. The Court's jurisdiction over



         14
              See Intervenor's Brief at 11-12.
         15
            The procedural mechanism for raising the issue of this Court's ruling on recoupment would be a conditional
cross-appeal. See 15A CHARLES ALAN WRIGHT, ARTHUR MILLER & EDWARD COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3902, at 78 (2d ed. 1977). Essentially, the Secretary could have stated to the Federal Circuit that, should
it hold that attorney Cornell was entitled to all or any portion of the disputed funds, the Secretary wished to appeal
this Court's ruling prohibiting recoupment from Mr. Moberly. See TypeRight Keyboard Corp. v. Microsoft Corp., 374
F.3d 1151, 1156 (Fed. Cir. 2004) ("A party may cross appeal if adversely affected by the appealed judgment in some
particular which it seeks to have modified); Bailey v. Dart Container Corp., 292 F.3d 1360, 1362 (Fed. Cir. 2002)
(cross appeal may be filed "when a party seeks to enlarge its own rights under the judgment or to lessen the rights of
its adversary under the judgment"). But see Nautilus Grp., Inc. v. Icon Health & Fitness, Inc. 437 F.3d 1376 (Fed. Cir.
2006) (and cases cited) (cross appeals improper to challenge claim construction of terms not pertinent to appealed
judgment of noninfringement). At least one court has held that the failure to raise an issue in cross appeal prevents the
litigation of that issue on remand. See Art Midwest Inc. v. Atl. Ltd. P'ship XII, 743 F.3d 206 (5th Cir. 2014).
         16
              25 Vet.App. 201 (2012).
         17
              See Porriello v. Shinseki, 30 Vet.App. 1 (2018).



                                                            5
issues arising from a Board decision over which it has jurisdiction is not so narrowly confined as
the Secretary suggests.18

       Contrary to the Secretary's assertion, the sole issue in the underlying appeal was not
whether the Board properly disposed of attorney Cornell's appeal. Rather, as the Court held, the
case presented a simultaneously contested claim.

        The Court has jurisdiction over all issues "appropriately identified [from] the radix [root]
of [the NOD]."19 Because the Court held that the case presented a simultaneously contested claim,
the Court must look to both NODs to identify appellate issues over which it had jurisdiction. Mr.
Moberly's NOD asserted that because attorney Cornell no longer represented him in the TDIU
claim, the 20% fee payment belonged to him as a portion of his past-due benefits. After VA paid
him the disputed funds, the corollary issue of his right to retain that payment arose, along with the
attendant right to be insulated from possible recoupment.

       The Secretary supported Mr. Moberly's intervention. The possibility of recoupment was
the basis on which the Court rejected attorney Cornell's motion to remove Mr. Moberly as an
intervenor.

        It is therefore untenable for the Secretary to suggest that the Court had no jurisdiction to
reach issues of possible recoupment. The Court holds that in cases of simultaneously contested
claims, where there has been duplicate payments to both parties, the Court has jurisdiction not only
to determine the proper recipient of the disputed funds, but also to examine the pendent issue of
of recoupment efforts with respect to both parties.

    B. Mr. Moberly was a prevailing party.

    1. Prevailing-party status requires a court order carrying sufficient judicial imprimatur to
       alter the legal relationship between the Government and the party seeking EAJA fees.

        As a general matter, it is well settled that an intervenor may be a prevailing party for
purposes of obtaining EAJA fees.20 Intervenors are treated "like any other prevailing or losing
party" in appeals from agency decisions.21

         18
           Cf. Young, 25 Vet.App. at 202-03 ("Because the Court has jurisdiction over the Board decision . . . the
Court has authority to 'decide all relevant questions of law' that arise with respect to the denied claim.").
         19
              Buckley v. West, 12 Vet.App. 76, 82 (1998) (citing Collaro v. West, 136 F.3d 1304, 1310 (Fed. Cir. 1998)).
          20
             Info. Sci's. Corp. v. United States, 78 Fed. Cl. 673, 677 (Ct. Cl. 2007) (and cases cited); see also CRST Van
Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016) (citing Buckhannon Bd. & Home Care, Inc. v. W. Va. Dep't
of Health Res., 532 U.S. 598, 602-03 (2001) (Court construes "prevailing party" consistently across various fee-
shifting statutes)).
         21
            Delta Airlines, Inc. v. CAB, 505 F.2d 386, 388 (D.C. Cir. 1974); see also United States v. Douglas, 55 F.3d
584, 587 (11th Cir. 2003) ("The EAJA clearly applies to protect third-party intervenors in civil forfeiture
proceedings."); Elec. Dist. No. 1 v. Fed. Energy Regulatory Comm'n, 813 F.2d 1246, 1247 n.4 (D.C. Cir. 1987) ("We
reject any suggestion that 'intervenors' should somehow be distinguished from 'applicants' under EAJA . . . .); Luna v.
Brown, 663 F. Supp. 109 (D. Co. 1987) (awarding EAJA fees to "plaintiff-intervenor"); Hyatt v. Heckler, 586 F. Supp.
1154 (W.D.N.C. 1984) (awarding EAJA fees to intervenor), vacated on other grounds, 757 F.2d 1455 (4th Cir. 1985),


                                                            6
        Whether a party qualifies as a "prevailing party" under EAJA is a question of law. 22 In
Akers v. Nicholson, the Federal Circuit stated that "prevailing party status requires some judicial
action that changes the legal relationship between the parties on the merits of the claim." 23 Two
examples of such an alteration in the legal relationship are an enforceable judgment on the merits
or a court-ordered consent decree.24

        The Federal Circuit expanded on this requirement, however, clarifying that the requisite
alteration in legal relationship is not limited to such results. The requirement to be deemed a
prevailing party may be met when a party "obtained a court order carrying 'sufficient judicial
imprimatur' to materially change the legal relationship of the parties."25

    2. The Court's bench announcement and confirmatory opinion altered the legal
       relationship between the intervenor and the Secretary.
       The EAJA statute defines a "prevailing party" in terms of one who prevails against the
United States,26 not one who succeeds in upholding the Agency's position against a third party.
Thus, Mr. Moberly's arguments supporting the Board's determination that the payment to attorney
Cornell was improper does not make him a prevailing party.27

        The Court's ruling precluding recoupment of any portion of the payment to Mr. Moberly is
another matter. This Court has stated that a prevailing party is "one who has succeeded on any
significant issue in litigation [that] achieved some of the benefit . . . sought in bringing suit."28
Here, Mr. Moberly sought a single benefit by his intervention in the underlying appeal—an order
precluding VA from seeking to recoup any of the disputed funds that had been paid to him. He
achieved precisely that outcome.

        Clearly, the Court's announcement from the bench, reiterated in the Court's precedential
opinion, is an order carrying the imprimatur of the Court that altered the legal relationship between
the intervenor and the Secretary. Before the Court's ruling from the bench, the Secretary
maintained that there was some possibility of recoupment from Mr. Moberly; the bench ruling and
the corresponding text in the Court's opinion extinguished that possibility.


cert. granted & vacated Hyatt v. Bowen, 106 S. Ct. 2886 (1986).
        22
             Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1363 (Fed. Cir. 2003).
        23
             409 F.3d 1356, 1359 (Fed. Cir. 2005) (citing Buckhannon, 532 U.S. at 605).
        24
             Former Emps. of Motorola, 336 F.3d at 1364.
        25
            Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1026 (Fed. Cir. 2005) (emphasis added); see also
Roberson v. Guliani, 346 F.3d 75, 81 (2d Cir. 2003); Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy,
288 F.3d 452, 458-59 (D.C. Cir. 2002) (cited favorably in Rice and emphasizing that an order carrying sufficient
judicial imprimatur to alter the legal relationship between the parties can confer prevailing-party status).
        26
             28 U.S.C. § 2412(d)(4).
        27
             See Money v. Office of Pers. Mgmt., 816 F.2d 665, 667 (Fed. Cir. 1987).
        28
            Dixon v. O'Rourke, 30 Vet.App. 113, 118 (2018) (emphasis added) (internal quotation marks omitted); see
also McCormick v. Principi, 16 Vet.App. 407, 411 (2002) (prevailing-party status determined by "ultimate receipt of
a benefit that was sought in bringing the litigation").



                                                           7
        The very basis on which the Court rejected a motion to terminate intervention was that Mr.
Moberly had a right to defend his interest against possible recoupment. That Mr. Moberly
prevailed in his position against the Secretary is an alteration in the legal relationship sufficient to
make him a prevailing party.
    C. The Secretary has not demonstrated substantial justification.
         VA must demonstrate the reasonableness, in law and fact, of the position of the
         [Secretary] in a matter before the Court, and of the action or failure to act by the
         VA in a matter before the VA, based upon the totality of the circumstances,
         including merits, conduct, reasons given, and consistency with judicial precedent
         and VA policy with respect to such position, and action or failure to act, as reflected
         in the record on appeal and the filings of the parties before the Court.[29]
The Secretary argues that because the Court upheld the Board determination that Mr. Moberly was
entitled to the disputed fees, its position at the administrative stage was substantially justified. The
Secretary offers no justification, however, for VA's erroneous payment to attorney Cornell in the
first instance, despite Mr. Moberly's properly filed notice of change in representation. In fact, when
this payment was challenged, VA immediately acknowledged error. Absent this error, none of this
litigation would have been necessary.

        As to its litigation position, the Secretary has not persuaded the Court that its refusal to
give assurance to Mr. Moberly that he would not be subject to recoupment efforts was reasonable.
Mr. Moberly repeatedly offered to withdraw from the underlying appeal, up to and including the
day of the oral argument, if such assurance were given.

        In the event the Court had found that attorney Cornell was entitled to all or a portion of the
disputed funds, it would have followed that the regional office and the Board made a
misapplication of law, amounting to administrative error. On these facts, there would have been
no basis on which VA could contend—and the Secretary has never contended—that the error
would have been attributable in any way to Mr. Moberly's conduct. This is especially true in view
of the Secretary's acknowledgement at oral argument that the payment of the disputed funds was
accompanied by no warning of the possibility of recoupment depending on the outcome of the
underlying appeal.

       Moreover, the payment to Mr. Moberly appears to be an uncoerced action on the part of
VA. At oral argument, the Secretary contended that VA was obligated to pay the funds to Mr.
Moberly upon the issuance of the Board decision stating his entitlement to the disputed funds. The
Secretary stated that this result was compelled by "Snyder." There are several cases in which Mr.
Snyder was the named appellant, but the Court takes the reference to be to Snyder v. Principi,30 in
which the Court stated that "the erroneous payment's existence is immaterial to the Secretary's
responsibility to make the payment to which there is lawful entitlement."31 There is nothing in that

         29
          Stillwell v. Brown, 6 Vet.App. 291, 302 (1994); see also McCormick, 16 Vet.App. at 411 (Secretary must
demonstrate substantial justification in both its administrative and litigation positions); Felton v. Brown, 7 Vet.App.
276, 279-80 (1994) (same).
         30
              15 Vet.App. 285 (2001).
         31
              Id. at 292.



                                                          8
case requiring VA to make a payment of disputed funds when the issue is part of a pending appeal
and the lawful entitlement has yet to be conclusively decided. Thus, the payment to Mr. Moberly,
unaccompanied by any warning of contingent recoupment, reflects the confidence VA had in its
position on entitlement to the disputed funds, which is incommensurate with its unwillingness to
give assurance that there would be no recoupment.

        Furthermore, the Secretary has offered no legitimate reason that he could not have
determined in advance that he would waive any indebtedness that might derive from this Court's
holding in the underlying appeal. The provision for recoupment states that, in the absence of
"fraud, misrepresentation[,] or bad faith on the part of [the payee],"32 "[t]here shall be no recovery
of payments . . . whenever the Secretary determines that recovery would be against equity and
good conscience."33 Obviously, there was no basis for a finding of bad faith or similar misconduct
on the part of Mr. Moberly. Furthermore, it was and is the intent of Congress "that if the veteran
is not at fault in creating the indebtedness due to improper action or lack of action by [VA], relief
should be granted to the veteran in such cases."34

        The Secretary's argument that advance consideration of waiver would be premature before
the creation of a valid debt is not persuasive. Where a potential erroneous payment would be so
clearly attributable to administrative error, and so clearly lacking in fault on the part of the veteran,
the refusal to give assurance of no recoupment is indefensible.

        The Secretary's insistence on the possibility of recoupment against Mr. Moberly35 resulted
in an unnecessary expenditure of resources, both on the part of Mr. Moberly and of this Court. The
Secretary should have realized that any recoupment from Mr. Moberly would be against equity
and good conscience, and that waiver would be the only appropriate response—even in advance
of an application for waiver. There was simply no justification for prolonging the tribulations of
this aged and frail veteran.36

                                              IV. CONCLUSION
       The Court concludes that Mr. Moberly is a prevailing party for EAJA purposes and the
Secretary's position with respect to recoupment was not substantially justified. Because the
Secretary raises no additional challenges to the EAJA application, the Court will GRANT the
application in full.

        Upon consideration of the foregoing, it is



        32
             38 U.S.C. § 5302(c).
        33
             38 U.S.C. § 5302(a).
        34
            Reyes v. Nicholson, 21 Vet.App. 370, 375 (2007) (quoting 125 Cong. Rec. H2289, H 2291 (daily ed. June
6, 1989) (statement of Rep. Montgomery)
        35
          Indeed, the Secretary only formally announced that there would be no such recoupment effort against Mr.
Moberly at oral argument.
        36
             See Intervenor's Motion to Expedite Appeal.



                                                           9
      ORDERED that the Secretary pay to Mr. Moberly fees and expenses in the amount of
$13,661.17.

Dated: May 31, 2019                                               PER CURIAM


Copies to:

Douglas J. Rosinski, Esq.

VA General Counsel (027)




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