Dover v. McDonald — EAJA prevailing-party status where remand contemplated further agency proceedings

The Federal Circuit reviewed the Veterans Court’s denial of attorney’s fees under the Equal Access to Justice Act after the claimant obtained vacatur and remand in a CUE/effective-date dispute. The question was whether the claimant was a “prevailing party” when the remand was based on agency error, the Veterans Court did not retain jurisdiction, and the remand order expressly directed further proceedings and allowed the submission of additional evidence and argument. Relying on its EAJA precedent, the Federal Circuit held that prevailing-party status turns on whether the remand materially alters the legal relationship of the parties and contemplates further agency proceedings. Because the remand here did so, and the Board in fact provided further proceedings on remand, the claimant was entitled to EAJA prevailing-party status. The court reversed the Veterans Court’s fee denial.

Under EAJA, a claimant is a prevailing party when a non-jurisdictional remand caused by agency error does not retain jurisdiction and expressly contemplates further agency proceedings, thereby materially altering the legal relationship of the parties.

For fee practice, the key question is whether the remand leaves room for meaningful further agency proceedings. If it does, prevailing-party status may attach even if the remand opinion also discusses dismissal or procedural defects.

This decision is important for EAJA applications in veterans appeals. It clarifies that a remand can confer prevailing-party status when it enables further proceedings on the merits, not just when it guarantees a favorable merits outcome. Practitioners should focus on the wording of the remand order and whether the court retained jurisdiction.

A claimant wins vacatur and remand at the Veterans Court because the Board failed to follow a required procedure, and the remand order allows submission of additional evidence on remand. If the court does not retain jurisdiction, the claimant may be entitled to EAJA fees as a prevailing party.

Use this case when seeking EAJA fees after a remand that opened the door to additional proceedings. It is especially useful to distinguish remands that merely direct dismissal from remands that preserve the possibility of merits adjudication.

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, Vaughn v. Principi, Former Employees of Motorola Ceramic Products, Inc. v. United States, Halpern v. Principi