Butts v. McDonald, 2016

  • Organization: CAVC
  • Document Type: Case law/admin decisions
  • Date Created: Wednesday, November 30, 2016
  • Submitted: Wednesday, November 30, 2016
  • Attachment(s): PDF

Before HAGEL, Chief Judge, and KASOLD, LANCE, DAVIS, SCHOELEN, PIETSCH, BARTLEY, GREENBERG, and MOORMAN, Judges. 1
DAVIS, Judge, filed the opinion of the Court.  KASOLD, Judge, filed an opinion concurring in part and dissenting in part.  LANCE, Judge, filed a dissenting opinion in which MOORMAN, Judge, joined.  BARTLEY, Judge, filed a dissenting opinion in which LANCE, PIETSCH, and MOORMAN, Judges, joined.  MOORMAN, Judge, filed a dissenting opinion.
DAVIS, Judge: Veteran Freddie Butts applies through counsel for an award of attorney fees and expenses in the amount of $3,030.02 pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The Court has jurisdiction pursuant to 28 U.S.C. § 2412(d)(2)(F) to award reasonable attorney fees and expenses. Mr. Butts filed his EAJA application within the 30-day period set forth in 28 U.S.C. § 2412(d)(1)(B), and his application satisfies that section's content requirements. See Scarborough v. Principi, 541 U.S. 401, 408 (2004). The Secretary filed a response challenging the EAJA application in which he argued both that Mr. Butts is not a prevailing party and that the Secretary's position in the merits case was substantially justified. Mr. Butts filed a reply to the Secretary's response. On July 29, 2015, this case was submitted to the en banc Court pursuant to title VII(b)(2)(A) of the Court's Internal Operating Procedures. Butts v. McDonald, U.S. Vet. App. No. 14-3019 (unpublished order July 29, 2015). On September 22, 2015, the en banc Court held oral argument. For the following reasons, the Court will grant in part Mr. Butts's EAJA application.
On consideration of the foregoing, Mr. Butts's EAJA application is GRANTED in the amount of $3,029.96.
KASOLD, Judge, concurring in part and dissenting in part.  I fully concur in the Court's determination that (1) the appellant was a prevailing party in the underlying merits case, and (2) the Secretary failed to demonstrate substantial justification in denying Mr. Butts's request for extraschedular consideration on a multiple-disability basis.