Dennis R. Louvall v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS R. LOUVALL,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1869
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7567, Judge Joseph L. Falvey,
Jr.
______________________
Decided: July 1, 2025
______________________
KENNETH M. CARPENTER, Carpenter Chartered, To-
peka, KS, argued for claimant-appellant.
MEREDYTH COHEN HAVASY, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE,
PATRICIA M. MCCARTHY; Y. KEN LEE, Office of General
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LOUVALL v. COLLINS 2
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
Opinion for the court filed by Circuit Judge STOLL.
Dissenting opinion filed by Circuit Judge REYNA.
STOLL, Circuit Judge.
Dennis R. Louvall appeals the United States Court of
Appeals for Veterans Claims’s denial of his application for
attorney’s fees pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d), following the remand of his case. Lou-
vall v. McDonough, No. 20-7567, 2023 WL 2132756
(Vet. App. Feb. 21, 2023). Because we conclude the Veter-
ans Court legally erred in its determination that Mr. Lou-
vall is not a prevailing party under EAJA, we reverse the
Veterans Court’s denial of Mr. Louvall’s EAJA application.
BACKGROUND
At the Veterans Court, Mr. Louvall asserted that the
Board of Veterans’ Appeals “applied the wrong legal stand-
ard under the provisions of 38 C.F.R. § 4.16(a).” J.A. 100.
He argued that the Board erroneously applied a preponder-
ance of the evidence standard when he needed to show only
that “it is at least as likely as not that his service[-]con-
nected disabilities cause him to be unable to secure or fol-
low a substantially gainful occupation” to receive the
benefit of the doubt. J.A. 101 (citing Gilbert v. Derwinski,
1 Vet. App. 49, 54 (1990)). He argued that the Board
“fail[ed] to apply the benefit of the doubt” which applies
where there is “an approximate balance of positive and
negative evidence.” Appellant’s Reply Br. at 7, Louvall
v. McDonough, No. 20-7567 (Vet. App. Dec. 20, 2021).
Therefore, he asserted the “Board[’s decision denying a to-
tal disability rating due to individual unemployability] was
not made in accordance with law” because “where there
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LOUVALL v. COLLINS 3
was an approximate balance of positive and negative evi-
dence, the Board was required as a matter of law to afford
[him] the benefit of the doubt.” Id. at 12.
While Mr. Louvall’s case was pending at the Veterans
Court, our court sat en banc in Lynch v. McDonough,
21 F.4th 776 (Fed. Cir. 2021), to consider when a claimant
is entitled to the benefit of the doubt.1
In Lynch, we held that “to eliminate the potential for
confusion going forward, we depart from Ortiz’s ‘prepon-
derance of the evidence’ language and determine that the
benefit-of-the-doubt rule simply applies if the competing
evidence is in ‘approximate balance,’ which Ortiz correctly
interpreted as evidence that is ‘nearly equal.’” Id. at 781
(quoting Ortiz v. Principi, 274 F.3d 1361, 1364–65
(Fed. Cir. 2001)); see also id. (“Put differently, if the posi-
tive and negative evidence is in approximate balance
(which includes but is not limited to equipoise), the claim-
ant receives the benefit of the doubt.”). But we also ex-
plained that Ortiz was not wrongly decided and that it
“correctly established that the benefit-of-the-doubt rule
does not apply when a factfinder is persuaded by the evi-
dence to make a particular finding.” Id. While Ortiz cor-
rectly focused on the issue of persuasion and whether the
Board has been persuaded in one direction or another, we
explained that the use of preponderance language could
lead to confusion given “other cases link ‘preponderance of
the evidence’ to the concept of equipoise” and not with per-
suasion. Id.
In Mr. Louvall’s case, the Veterans Court determined
“remand is warranted for the Board to address the
1 Mr. Louvall filed his Veterans Court opening brief
in July 2021 and his reply brief on December 20, 2021—
just after the en banc Lynch decision issued on Decem-
ber 17, 2021.
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LOUVALL v. COLLINS 4
veteran’s argument and Lynch in the first instance.” Lou-
vall v. McDonough, No. 20-7567, 2022 WL 1302067, at *1
(Vet. App. May 2, 2022). The Veterans Court cited
Mr. Louvall’s argument that “the Board applied the wrong
legal standard by basing its decision on ‘[t]he preponder-
ance of the evidence.’” Id. (alteration in original) (citation
omitted).
Following remand, Mr. Louvall sought an award of at-
torney’s fees pursuant to EAJA. In opposition to Mr. Lou-
vall’s EAJA application, the Secretary only contested
Mr. Louvall’s status as a prevailing party. Secretary’s Re-
sponse Under U.S. Vet. App. R. 39 to Appellant’s Applica-
tion for Attorney Fees and Expenses at 3, Louvall
v. McDonough, No. 20-7567 (Vet. App. Sept. 8, 2022) (“The
Secretary does not challenge any other aspect of Appel-
lant’s application.”). Initially, the Veterans Court granted
Mr. Louvall’s EAJA application in full. The Secretary filed
a motion for reconsideration, which the court granted. The
court then withdrew its previous decision and issued a new
decision holding that Mr. Louvall is not a prevailing party
within the meaning of EAJA because the remand deci-
sion: (1) “was not based on an explicit or implicit Board er-
ror,” and (2) did not “materially change the legal
relationship of the parties.” Louvall v. McDonough,
No. 20-7567, 2023 WL 2132756, at *1 (Vet. App. Feb. 21,
2023). Because it determined Mr. Louvall is not a prevail-
ing party, the Veterans Court denied his application for
fees under EAJA.
Mr. Louvall appeals. We have jurisdiction pursuant to
38 U.S.C. § 7292(a).
DISCUSSION
The question of whether Mr. Louvall is a “prevailing
party” under EAJA is a question of law that we review de
novo. Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir.
2007); Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir.
2004) (emphasizing that we have jurisdiction “to determine
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LOUVALL v. COLLINS 5
whether the legal requirement of the statute or regulation
has been correctly interpreted in a particular context
where the relevant facts are not in dispute, that is, whether
there is an error of law”). Accordingly, “we review the Vet-
erans Court’s interpretation of EAJA without deference,
but we are precluded from reviewing its application of
EAJA to the facts of a particular case.” Thompson
v. Shinseki, 682 F.3d 1377, 1380 (Fed. Cir. 2012).
EAJA codifies a congressional mandate that, “in de-
fined circumstances, the government pay appropriate at-
torney’s fees to private parties who win in litigation against
it.” Wagner v. Shinseki, 733 F.3d 1343, 1344 (Fed. Cir.
2013) (citing 28 U.S.C. § 2412). “[T]he specific purpose of
the EAJA is to eliminate for the average person the finan-
cial disincentive to challenge unreasonable governmental
actions.” Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163 (1990).
As we have previously explained, EAJA’s “central policy is
of particular significance, in the ‘uniquely pro-claimant’
system for adjudicating veterans’ claims for benefits.”
Wagner, 733 F.3d at 1344 (quoting Kelly v. Nicholson,
463 F.3d 1349, 1353 (Fed. Cir. 2006)).
EAJA provides that “a court shall award to a prevailing
party other than the United States fees and other ex-
penses . . . incurred by that party in any civil action . . . un-
less the court finds that the position of the United States
was substantially justified or that special circumstances
make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In re-
viewing the denial of Mr. Louvall’s application, the only
question before us is whether Mr. Louvall qualifies as a
prevailing party within the meaning of § 2412(d)(1)(A). We
are convinced that he does.
To qualify as a prevailing party, one must receive “at
least some relief on the merits of his claim.” Robinson
v. O’Rourke, 891 F.3d 976, 980 (Fed. Cir. 2018) (citation
omitted). In some cases, securing a remand order to an ad-
ministrative agency may constitute success on the merits
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LOUVALL v. COLLINS 6
but only where the remand is predicated “either explicitly
or implicitly . . . on administrative error.” Id. at 980–81;
Former Emps. of Motorola Ceramic Prods. v. United States,
336 F.3d 1360, 1366 (Fed. Cir. 2003) (“[W]here the plaintiff
secures a remand requiring further agency proceedings be-
cause of alleged error by the agency, the plaintiff qualifies
as a prevailing party . . . without regard to the outcome of
the agency proceedings where there has been no retention
of jurisdiction by the court . . . .”); Kelly, 463 F.3d at 1355
(noting that “outright reversal on the merits has been very
rare” in the Veterans Court).
A review of our precedent supports that an appellant
will qualify as a prevailing party when the remand turns
on the recognition of the merits of appellant’s argument.
See Kelly, 463 F.3d at 1354 (classifying appellant as a pre-
vailing party for “securing a remand requiring considera-
tion of his ataxia diagnosis” which he argued the regional
office and Board failed to consider); Dover v. McDonald,
818 F.3d 1316, 1317–18 (Fed. Cir. 2016) (classifying appel-
lant as a prevailing party where appellant secured a re-
mand and opportunity to pursue a claim based on her
argument that the VA did not follow its regulations when
it failed to dismiss a “non-specific” claim without prejudice
and without reaching the merits); Motorola, 336 F.3d
at 1366 (explaining that a remand which grants relief on
the merits raised by the plaintiff “is itself success on the
merits” but acknowledging “[w]e do not hold that every re-
mand constitutes a grant of relief on the merits”); Davis
v. Nicholson, 475 F.3d 1360, 1364 (Fed. Cir. 2007) (explain-
ing that “remands based on our recognition of agency error
from the record do confer prevailing party status” but “re-
mands to consider the effects of intervening new law . . . do
not qualify plaintiffs as prevailing parties” (citation omit-
ted)); see also Rivers v. Roadway Exp., Inc., 511 U.S. 298,
312–13 (1994) (“A judicial construction of a statute is an
authoritative statement of what the statute meant before
as well as after the decision of the case giving rise to that
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LOUVALL v. COLLINS 7
construction.”); Env’t Def. Fund, Inc. v. Reilly, 1 F.3d 1254,
1257–58 (D.C. Cir. 1993) (concluding petitioner qualifies as
a prevailing party where the parties filed a joint motion for
a remand to comply with notice and comment requirements
which the plaintiff had alleged the agency had violated).
But see Akers v. Nicholson, 409 F.3d 1356, 1359–60
(Fed. Cir. 2005) (intervening decision holding that the VA
could consider methods other than waiver to forgive a debt
did not render an appellant a prevailing party who merely
challenged the denial of debt wavier).
Before the Veterans Court, Mr. Louvall specifically as-
serted that he was entitled to the benefit of the doubt as
his standard of proof and that “the Board applied the wrong
legal standard by basing its decision on ‘[t]he preponder-
ance of the evidence.’” Louvall, 2022 WL 1302067, at *1
(alteration in original) (citation omitted); Louvall, 2023 WL
2132756, at *2 (explaining that Mr. Louvall “argued that
the Board, under the guise of a finding of fact, used a stand-
ard of proof other than the benefit of the doubt”). The Vet-
erans Court held that “remand is warranted for the Board
to address the veteran’s argument and Lynch in the first in-
stance.” Louvall, 2022 WL 1302067, at *1 (emphasis
added).
In other words, the remand was premised on Mr. Lou-
vall’s argument that the preponderance of the evidence is
the wrong legal standard, which is also the legal argument
considered in Lynch. 21 F.4th at 779–80 (explaining that
the veteran contended “that the Board misapplied
38 U.S.C. § 5107(b) and wrongly found that he was not en-
titled to the ‘benefit of the doubt’” and that “Ortiz’s state-
ment that ‘the benefit of the doubt rule is inapplicable
when the preponderance of the evidence is found to be
against the claimant,’ is contrary to the statutory ‘approx-
imate balance’ standard” (citations omitted)).
This is not a case where the Veterans Court simply re-
manded for the Board to consider an intervening change in
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LOUVALL v. COLLINS 8
law in the first instance. Rather, the remand was expressly
predicated on Mr. Louvall’s argument that the Board ap-
plied the wrong legal standard and the intervening opinion
in Lynch merely provided additional support to his conten-
tion that the Board erred. Under these circumstances, the
remand is most reasonably read as being implicitly based
on administrative error, and thus we reverse the Veterans
Court’s determination that Mr. Louvall is not a prevailing
party.
Given that the Secretary only contested whether
Mr. Louvall qualified as a prevailing party in his EAJA ap-
plication, we need not remand this matter for consideration
of the remaining EAJA requirements. Secretary’s Re-
sponse Under U.S. Vet. App. R. 39 to Appellant’s Applica-
tion for Attorney Fees and Expenses at 3, Louvall, No. 20-
7567 (Vet. App. Sept. 8, 2022) (“The Secretary does not
challenge any other aspect of Appellant’s application.”).
CONCLUSION
We have considered the Government’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we reverse the Veterans Court’s denial of
Mr. Louvall’s application for an award of attorney’s fees
under EAJA.
REVERSED
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N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS R. LOUVALL,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1869
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7567, Judge Joseph L. Falvey,
Jr.
______________________
REYNA, Circuit Judge, dissenting.
Our precedent is clear that a claimant who obtains a
remand order is not a prevailing party under the Equal Ac-
cess to Justice Act unless they demonstrate that the re-
mand is explicitly or implicitly predicated on
administrative error. There is no such demonstration in
this case.
Here, Mr. Louvall obtained a remand order instructing
the Board of Veterans’ Appeals to address his argument
and the Federal Circuit’s intervening en banc decision in
“Lynch in the first instance[.]” Louvall v. McDonough,
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LOUVALL v. COLLINS 2
No. 20-7567, 2022 WL 1302067, at *1 (Vet. App. May 2,
2022). I agree with the majority that the remand is not
explicitly predicated on administrative error, see Maj.
Op. 7–8, but I do not agree that Mr. Louvall has shown that
the remand was implicitly predicated on administrative er-
ror. Nor can it be said that a remand for the Board to ad-
dress Lynch in the first instance necessarily implies
administrative error. Accordingly, I respectfully dissent.
I.
For a claimant to obtain prevailing party status under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d), a claimant must receive “at least some relief on
the merits of [their] claim.” Robinson v. O’Rourke, 891 F.3d
976, 980 (Fed. Cir. 2018) (quoting Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S.
598, 603 (2001)). Claimants who obtain a remand order
must demonstrate that the remand is explicitly or implic-
itly predicated on administrative error. Id. at 980–81.
When there is no “judicial finding of administrative error
or a concession of such error by the agency,” i.e., no explicit
error, “the default rule is that the remand is not based on
administrative error for EAJA purposes[.]” Davis v. Ni-
cholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007). To overcome
the default rule, the claimant must prove that “the remand
had to have been predicated on administrative error even
though the remand order does not say so,” i.e., implicit er-
ror exists. Id.
Turning to the remand order, the Veterans Court
briefly summarized Mr. Louvall’s argument and our inter-
vening decision in Lynch v. McDonough, 21 F.4th 776
(Fed. Cir. 2021) (en banc). Louvall, 2022 WL 1302067,
at *1. After providing this summary, the Veterans Court
declined to address the merits of Mr. Louvall’s appeal. Id.
at *1–2. The Veterans Court determined that a “remand
[was] warranted for the Board to address the veteran’s ar-
gument and Lynch in the first instance,” reasoning that
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LOUVALL v. COLLINS 3
“where there has been a new legal development between
the issuance of a Board decision and the submission of a
case to the [Veterans] Court, [the Veterans Court has] the
discretion not to address the effect of that development and
instead remand for the Board to consider it in the first in-
stance.” Id. (citations omitted).
The Veterans Court’s remand order does not explicitly
profess administrative error, and the agency has not con-
ceded error. Maj. Op. 7–8; Appellee Br. 13. As such, the
default rule (no error) applies unless Mr. Louvall shows
otherwise.
To determine whether Mr. Louvall has carried his bur-
den to show implicit error, we must address the basis of the
Veterans Court’s decision to remand, which is our decision
in Lynch (and Mr. Louvall’s arguments relating to the
same issue addressed in Lynch). In Lynch, we addressed
the “benefit of the doubt rule” under 38 U.S.C. § 5107(b)
and examined Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.
2001), which held that “the benefit of the doubt rule is in-
applicable when the preponderance of the evidence is found
to be against the claimant.” Lynch, 21 F.4th at 779 (quot-
ing Ortiz, 274 F.3d at 1364). We explained that Ortiz was
“not wrongly decided” because it “correctly established that
the benefit-of-the-doubt rule does not apply when a fact-
finder is persuaded by the evidence to make a particular
finding.” Id. at 781–82 (emphasis in original and citation
omitted). Nonetheless, we departed from “Ortiz’s ‘prepon-
derance of the evidence’ language” to avoid any confusion
it may create, given that other cases “link ‘preponderance
of the evidence’ to the concept of equipoise.” Id. at 781.
Mr. Louvall has not carried his burden to show implicit
error. While Lynch clarified the benefit of the doubt rule,
there is no explicit or implicit indication from the remand
order or its surrounding context that the Veterans Court
believed that the Board applied the wrong legal standard
(equipoise, rather than persuasion). If the Veterans
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LOUVALL v. COLLINS 4
Court’s remand order could be read as implying as much,
then I would join the majority opinion. However, the most
reasonable interpretation of the Veterans Court’s remand
order is that the Veterans Court was unable to determine
whether the Board applied a legal standard based on equi-
poise or persuasion, and thus the Veterans Court re-
manded for the Board to clarify its analysis, in light of
Lynch. Given this understanding of the remand order,
Mr. Louvall failed to carry his burden to show that “the re-
mand had to have been predicated on administrative error
even though the remand order does not say so,” i.e., implicit
error. Davis, 475 F.3d at 1366.
Accordingly, I respectfully dissent.
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