Scarborough, Randall v. Principi, Anthony, Secy. of Veterans Affairs (05/03/2004)

Questions presented: Whether a complete application for attorney fees and other expenses under The Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(B), containing all the essential elements, must be filed within thirty days to confer jurisdiction on the court.

BY TAMIKA D. HAWKINS, MEDILL NEWS SERVICE

Randall Scarborough of Raleigh, North Carolina, like many Americans had dreamed of serving his country as a member of the United States Navy. Not even a high school diagnosis of proteinuria, a condition in which urine contains an abnormal amount of protein, could dampen his determination.

After receiving medical clearance from a urologist in 1972, he fulfilled his dream and enlisted in the Navy.

Three years later, Scarborough began battling kidney failure and was discharged as a result of chronic renal complications. For assistance, he turned to the local Department of Veterans Affairs (VA), in Winston-Salem, where he was initially refused aid.

A debate ensued because the VA argued that Scarboroughs renal disease began in 1976, thus making it non-service related. Scarborough, however, insisted that his diagnosis was made in 1975, at which time he would have still had active military status.

An agreement was reached between the two parties, and the VA granted Scarborough the option of having an in-house dialysis machine to assist with his failing condition.

Things were going well "for all of the 1980s," according to Peter Sarda, Scarborough's attorney in the initial claim, until Scarborough was told that he was not "service-connected" and that the VA would have to take the machine back.

Without the in-house treatment, he needed to drive from his home in Raleigh to a hospital in Durham.

During that time Scarborough received a kidney transplant. But while his health was improving, he was still unable to work and support his wife and two children.

In 1993, he decided to apply for disability benefits, and the VA agreed that his disease was incurred during military service, thus awarding him a 100-percent disability rating.

But before the benefits could be dispersed, the same debate arose questioning the effective date of Scarborough's initial renal disease diagnosis.

The VA denied Scarborough disability benefits on the grounds that the initial VA findings - which concluded that Scarborough was diagnosed with the disease after his military discharge - were indeed accurate, and not of "clear and unmistakable error."

The Board of Veterans Appeals agreed.

The U. S. Court of Appeals for Veterans Claims reversed, granting Scarborough retroactive benefits for the period of 1975 to 1993.

The court noted that the Board had failed to consider the legal standards in determining whether the 1976 finding was of "clear and unmistakable error."

Based on the appeals court judgment, Scarborough applied for nearly $20,000 in attorneys fees and other expenses under the Equal Access to Justice Act.

The Act states that attorneys fees and expenses "shall" be awarded to eligible parties who have prevailed in litigation against the federal government, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."

In filing his application, however, Scarborough failed to allege that the position of the United States "was not substantially justified," and the government moved to dismiss the fee application, even though it was filed in a timely manner.

Though Scarborough amended the application to supply the missing allegation, the Veterans Court dismissed the application, concluding it was not amended within the thirty-day time period.

In a divided opinion, the Court of Appeals for the Federal Circuit affirmed, holding that the "substantially justified" allegation is intended to provide a threshold for fee determination.

In doing so, though, the majority acknowledged that its decision directly conflicted with those of other circuits in interpreting the Acts statutes.

In Dunn v. U.S., the 3rd Circuit found in 1985 that a failure to itemize the amount sought under the Acts requirements may be corrected after the thirty-day period if no government prejudice arises.

The 11th Circuit also embraced the reasoning of the Dunn case and found that fee applications may be supplemented after the thirty-day period to satisfy the requirements regarding net worth and the governments position being "not substantially justified."

After a failed attempt at seeking a rehearing by the Federal Circuit, Scarborough petitioned the U.S. Supreme Court for a writ of certiorari on the grounds that the Federal Circuits decision created a division among the federal courts.

While Scarborough urges that certiorari is warranted to resolve conflict in the circuits, attorneys for Principi argue that it is not clear that the conflict is of great practical importance.

According to Principis brief, regardless of the burden of proof on this issue, Congress unambiguously placed the burden on the applicant to make a timely allegation that he is entitled to fees because the governments position was not substantially justified.

On Sept. 30, 2003, one week before the start of the 2003-04 term, the Court accepted review in the case.

Attorneys: For Randall C. Scarborough:BrianWolfmanPublic Citizen Litigation Group1600 20th Street, N.W.Washington,DC20009(202) 588-1000

For U.S. (Anthony J. Principi, Secretary of Veterans Affairs):Theodore B.OlsonSolicitor General, Counsel of RecordPETER D. KEISLERAssistant Attorney GeneralWILLIAM KANTERAUGUST E. FLENTJE