          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           No. 04-0381(E)

                                  KEITH D. SNYDER, APPELLANT ,

                                                  V.


                                       ERIC K. SHINSEKI,
                           SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                   On Appellant's Application for Attorney Fees and Expenses


                                   (Decided February 17, 2009)


       Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

       Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; and
Edward V. Cassidy, Jr., Deputy Assistant General Counsel, all of Washington, D.C., for the
appellee.

       Before GREENE, Chief Judge, and KASOLD and DAVIS, Judges.

       DAVIS, Judge: Before the Court is attorney Keith D. Snyder's October 26, 2007, application
for an award of $24,908.68 for attorney fees and expenses pursuant to the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d). The Secretary argues that his position was substantially justified
and that, therefore, the application should be denied. For the reasons that follow, the Court will deny
the EAJA application.


                                        I. BACKGROUND
       This EAJA request arises from successful litigation regarding appellant Snyder's
representation of an incarcerated veteran. Mr. Snyder had successfully represented an incarcerated
veteran who was given a past-due benefit award based on a 70% disability rating. Because of the
veteran's incarceration, however, VA reduced his payment to that corresponding to a 10% disability
rating pursuant to statute. See 38 U.S.C. § 5313 (mandating a rating reduction to 10% for
incarcerated claimants).
         Under 38 U.S.C. § 5904(d)(1), Mr. Snyder was authorized to receive fees in an amount
"equal to 20% of the total amount of any past-due benefits awarded on the basis of the . . . claim."
The question before the Board was whether Mr. Snyder's 20 percent fee would be calculated based
on the 70% disability rating awarded to the veteran, or the 10% reduced rating. The Board of
Veterans' Appeals (Board) concluded that it was the latter. Mr. Snyder appealed that decision to this
Court.
         In a February 2006 panel opinion, this Court affirmed the Board's decision to base
Mr. Snyder's attorney fee award based on the past-due benefits his client actually received after the
statutorily mandated reduction because of the veteran's incarceration, rather than the full amount of
past-due benefits awarded prior to the reduction.
         In a June 8, 2007, opinion, the United States Court of Appeals for the Federal Circuit
(Federal Circuit) reversed this Court's decision. See Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir.
2007). The Federal Circuit determined that "section 5313 [(reducing disability awards to 10% if a
veteran is incarcerated)] does not serve to restate the award of past-due benefits; instead, it only
serves as a withholding device." Id. at 1219. Consequently, the Federal Circuit remanded the matter
for "VA to calculate Mr. Snyder's 20 percent fee on the basis of [the veteran's] award of a 70[%]
disability rating." Id. Accordingly, on September 25, 2007, this Court remanded Mr. Snyder's claim
to the Board. This EAJA application followed.


                                         II. ANALYSIS
                                           A. Eligibility
         This Court has jurisdiction to award reasonable fees and expenses pursuant to 28 U.S.C.
§ 2412(d)(2)(B). See Veterans Benefits Act of 2002 (VBA), Pub. L. No. 107-330, § 403, 116 Stat.
2820, 2833 (2002). EAJA fees may be awarded where the application was filed within the 30-day
EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and contains (1) a showing that 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 allegation that the Secretary's position was
not substantially justified; and (4) an itemized 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);


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Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The appellant's EAJA application was
timely filed and satisfies the EAJA-content requirements, and is therefore eligible to receive an
EAJA award. See id. The Secretary makes no argument with respect to prevailing-party status, net
worth, or the reasonableness of the fees requested. The only issue in contention is whether the
Secretary's position was substantially justified at the administrative stage.
                                       B. Substantial Justification
          The appellant contests the justification of the Secretary's position at the administrative level
only. Once an allegation of lack of substantial justification is made, the burden is on the Secretary
to prove that his position was substantially justified. See Cullens, supra; Locher v. Brown,
9 Vet.App. 535, 537 (1996). In judging reasonableness during the administrative proceedings, the
Court looks to the relevant determinative circumstances, including the state of the law at the time
of the Board decision. Moore v. Gober, 10 Vet.App. 436, 440 (1997) (citing Bowyer v. Brown,
7 Vet.App. 549, 552 (1995)). That determination is based not on any single factor, but on the totality
of the circumstances, which includes consideration of, "among other things, '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. White v. Nicholson, 412 F.3d 1314, 1317 (Fed. Cir. 2005) (quoting Johnson v. Principi,
17 Vet.App. 436, 442 (2004)). Moreover, "a position can be justified even though it is not correct,
and . . . it can be substantially (i.e., for the most part) justified if a reasonable person could think it
correct, that is, if it has a reasonable basis in law and fact." Stillwell v. Brown, 6 Vet.App. 291, 302
(1994).
          The Secretary maintains that the Board "relied upon case law from this Court and statutes and
regulations that had not been challenged." Secretary's Response (Resp.) at 5. He further states that,
at the administrative level, the Board discussed the relevant statutes, regulations, and caselaw
pertaining to payment of attorney fees, and further notes that this Court subsequently agreed with the
Board's analysis. He argues that the Federal Circuit, "for the first time" determined that the amount
awarded to a veteran is distinct from the amount paid to the veteran. He further argues that "the
Board was following well-established law and its analysis was subsequently upheld by this Court."
Secretary's Resp. at 11.


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         The Court agrees with the Secretary that the Board's decision at the administrative level was
substantially justified; that is, it had a reasonable basis in law and fact. See Stillwell, supra. The
issue was one of first impression. The Secretary's interpretation that attorney awards should be paid
only from the amounts actually paid to a veteran, as reflected in the Secretary's regulation, 38 C.F.R.
§ 20.6091, was consistently held and reasonably based on the concept that an attorney's fee is derived
from the amount actually paid to or on behalf of the veteran as opposed to the amount that might be
awarded absent other statutory constraints, such as those imposed when a veteran is in prison, see
38 U.S.C. § 5313, or receiving military retired pay, see 10 U.S.C. § 1414; see also 38 C.F.R.
§ 20.609(h)(1)(iii) (removed in 2008) (defining "past-due benefits" as a non-recurring "payment").
That the Secretary's position ultimately was rejected does not mean that he was not substantially
justified in his position. See Pierce, 487 U.S. 552, 566, 569 (1988) ("Obviously, the fact that one
other court agreed or disagreed with the Government does not establish whether its position was
substantially justified."); Bates v. Nicholson, 20 Vet.App. 185, 192 (2006) (holding Secretary's
position to be substantially justified where the question presented was a matter of first impression);
see also Edwards v. McMahon, 834 F.2d 796, 802-03 (9th Cir. 1987) (finding the Secretary's
position substantially justified where the district court granted summary judgment on the issue of
relevant regulation's inconsistency with the relevant statute, but "the issue involved a matter of first
impression. The parties raised difficult questions of statutory interpretation, with substantial sums
at stake. The Secretary 'argued forcefully and well for ... [his] position.'" (internal citations omitted;
omission and alteration in original)).
         Although '"EAJA redresses governmental abuse, it was never intended to chill the
government's right to litigate or to subject the public fisc to added risk of loss when the government
chooses to litigate reasonably substantiated positions, whether or not the position later turns out to
be wrong.'" Carpenter v. West, 12 Vet.App. 316, 321 (1999) (quoting Roanoke River Basin Ass'n
v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993)). Here, based on the overall circumstances
surrounding this matter, the Secretary's position was "justified to a degree that would satisfy a
reasonable person." Pierce, 487 U.S. at 565; see also Stillwell, 6 Vet.App. at 303.

         1
         Section 20.609 has been amended and renumbered effective June 23, 2008. See 38 C.F.R. § 14.636; see also
73 FR 29852-01 at 29866 (noting that section 14.636 applies "to fee agreements entered on or after June 23, 2008. They
do not apply to fee agreements entered before June 23, 2008.").

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                                      III. CONCLUSION
       Upon consideration of the pleadings and record on appeal, and for the reasons stated herein,
the application is DENIED.




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