Marcos Greenidge v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
MARCOS GREENIDGE,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2044
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7820, Judge Grant Jaquith,
Judge Joseph L. Toth, Judge William S. Greenberg.
______________________
Decided: June 5, 2026
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant. Also represented by
K ENNETH M. C ARPENTER.
STEPHEN J. SMITH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. B OYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY ; BRIAN D. G RIFFIN, ANDREW J. STEINBERG, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
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GREENIDGE v. COLLINS 2
______________________
Before L OURIE and H UGHES , Circuit Judges, and K LEEH ,
Chief District Judge.†
HUGHES, Circuit Judge.
Marcos Greenidge appeals from the decision of the
United States Court of Appeals for Veterans Claims deny-
ing his application for attorneys’ fees under the Equal Ac-
cess to Justice Act. Because the Veterans Court erred in
determining that Mr. Greenidge is not a “prevailing party”
pursuant to 28 U.S.C. § 2412(d)(1)(A), we reverse and re-
mand.
I
A
Mr. Greenidge is a veteran of the Vietnam Era, having
served in the U.S. Army from May 1970 to February 1972.
In February 1993, Mr. Greenidge was awarded service con-
nection for PTSD, effective May 1991, and assigned a 10%
rating (the 1993 Decision). In September 2019, the Board
of Veterans’ Appeals determined Mr. Greenidge was enti-
tled to an earlier effective date of May 1983 on the basis of
clear and unmistakable error (CUE) in the 1993 Decision.
The Board remanded Mr. Greenidge’s claim to the regional
office (RO) to implement the earlier effective date and to
determine whether he was also entitled, on the basis of
CUE, to a higher disability rating. The RO implemented
the May 1983 effective date, but, in a supplemental state-
ment of the case (SSOTC) issued in May 2020, denied a
higher rating on the basis of CUE.
† Honorable Thomas S. Kleeh, Chief District Judge,
United States District Court for the Northern District of
West Virginia, sitting by designation.
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GREENIDGE v. COLLINS 3
Appellate review of such a decision is initiated by the
filing of a notice of disagreement (NOD). See 38 U.S.C.
§ 7105(a). But before Mr. Greenidge filed an NOD, the
Board preemptively took up his claim and denied a higher
rating. See J.A. 140–56. On appeal to the Veterans Court,
Mr. Greenidge argued that the Board acted without juris-
diction and requested that the Veterans Court vacate the
Board’s decision and remand to the Board with instructions
to in turn remand to the RO to issue a statement of the
case. The government agreed that the Board was without
jurisdiction to issue its decision given the lack of an NOD.
However, the government argued that the Board’s decision
should be vacated and Mr. Greenidge’s appeal be dismissed
rather than remanded.
In a February 2022 decision, the Veterans Court
agreed with the government, concluding that because the
Board issued its decision without jurisdiction, the Veterans
Court lacked jurisdiction and, therefore, the authority to
remand as Mr. Greenidge requested. J.A. 158. Emphasiz-
ing that Mr. Greenidge had a separate, properly noticed
appeal pending before the Board regarding the merits of
the RO’s SSOTC, the Veterans Court vacated the Board’s
ultra vires decision and dismissed Mr. Greenidge’s appeal.
See J.A. 157–58.
B
On the basis of the Veterans Court’s February 2022 de-
cision, Mr. Greenidge applied for $9,144.73 in attorneys’
fees under the Equal Access to Justice Act (EAJA).
J.A. 159–64. Mr. Greenidge maintained that the Board’s
position—issuing a decision without jurisdiction to do
so—was not “substantially justified” and that he was there-
fore a prevailing party entitled to fees by statute. See
J.A. 161–62. The government opposed the request, arguing
that the Veterans Court lacked jurisdiction to consider the
fee application and, in the alternative, that Mr. Greenidge
was not a “prevailing party” as required by EAJA.
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GREENIDGE v. COLLINS 4
In a split decision, the Veterans Court held that
Mr. Greenidge was not a prevailing party under EAJA be-
cause he failed to secure “a remand from [the Veterans
Court] that either clearly called for further VA proceedings
or materially altered his legal relationship vis-à-vis the
Secretary.” Greenidge v. McDonough, 37 Vet. App. 213, 216
(2024) (EAJA Decision).1 The Veterans Court relied on its
decision in Blue v. Wilkie for the “definitive” test for deter-
mining prevailing party status “in the context of remands
to administrative agencies,” which requires the existence
of a remand from the Veterans Court that (1) calls for ad-
ditional agency action, (2) is predicated on agency error,
and (3) does not retain jurisdiction in the Veterans Court.
Id. at 221–22 (quoting 30 Vet. App. 61, 67 & n.3 (2018)).
Thus, fatal to Mr. Greenidge’s application was “that there
was no remand to the Board in this case.” Id. at 222. And,
doubly fatal, without a remand order, there could be no re-
mand that required further agency action. Id. The Veter-
ans Court also discounted Mr. Greenidge’s argument that
he prevailed because he secured vacatur of the Board’s ul-
tra vires decision, removing it as an obstacle to litigating
his CUE motion to the Board through proper procedures
and thereby materially altering his legal relationship with
the government. Id. at 223. The Veterans Court concluded
that the “opportunity to have his otherwise finally denied
1 In an earlier decision, the Veterans Court held that
it lacked jurisdiction to consider Mr. Greenidge’s EAJA ap-
plication because it had set aside the Board’s underlying
decision for lack of jurisdiction. See Greenidge v.
McDonough, No. 20-7820(E), 2022 WL 11163723, at *1
(Vet. App. Oct. 19, 2022). On remand from this court, the
Veterans Court withdrew that decision and issued in its
place the presently appealed-from decision exercising juris-
diction over Mr. Greenidge’s fee request but denying it on
prevailing party grounds. See EAJA Decision, 37 Vet. App.
at 223.
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GREENIDGE v. COLLINS 5
motion reconsidered by the Board” did not “constitute a
material alteration in the legal relationship between him
and the Secretary.” Id. (cleaned up).
Mr. Greenidge timely appealed. We have jurisdiction
pursuant to 38 U.S.C. § 7292(c).
II
The Equal Access to Justice Act is a waiver of sovereign
immunity that allows parties that prevail against the gov-
ernment in non-tort civil actions to recover attorneys’ fees,
subject to certain conditions. See 28 U.S.C. § 2412(d)(1)(A).
The text of EAJA provides:
Except as otherwise specifically provided by stat-
ute, 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 ac-
tion (other than cases sounding in tort), including
proceedings for judicial review of agency action,
brought by or against the United States in any
court having jurisdiction of that action, unless the
court finds that the position of the United States
was substantially justified or that special circum-
stances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added). As the plain
text makes clear, fees can only be awarded to the “prevail-
ing party” in a “civil action” provided there is no finding
that the government’s position “was substantially justified
or that special circumstances make an award unjust.” Id.
The only issue in this appeal is whether Mr. Greenidge is a
prevailing party. See Appellee Br. 17 (noting “the Secretary
waived any defense regarding whether his position was
substantially justified or whether special circumstances
would make an award of fees unjust” (citing J.A. 174 n.1)).
This is a question of law that we review de novo. See Davis
v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir. 2007).
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GREENIDGE v. COLLINS 6
A
We first frame EAJA’s prevailing party inquiry within
the context of a court’s review of administrative agency de-
terminations.
The Supreme Court has distinguished between judicial
review of administrative agency decisions and proceedings
that originate in district court. See, e.g., Former Emps. of
Motorola Ceramic Prods. v. United States, 336 F.3d 1360,
1364–67 (Fed. Cir. 2003) (Motorola) (analyzing Supreme
Court precedent and distinguishing between proceedings).
As relevant here, when assessing prevailing party status,
the Veterans Court proceeding is considered separate from
the underlying agency proceeding seeking an increased dis-
ability rating based on CUE. See id. at 1365. And it is the
Veterans Court proceeding in which the EAJA fee appli-
cant must prevail, not necessarily the underlying adminis-
trative proceeding. See id. at 1366; Kelly v. Nicholson,
463 F.3d 1349, 1354 (Fed. Cir. 2006) (“In awarding attor-
neys’ fees and expenses under EAJA, the inquiry is
whether [the veteran] was a prevailing party in his ‘civil
action,’ not whether he ultimately prevails on his service
connection claim.”). This conclusion flows directly from the
plain text of EAJA, which provides for an award of the fees
that are incurred by the prevailing party in the “civil ac-
tion,” including “proceedings for judicial review of agency
action” in a “court” with jurisdiction. See 28 U.S.C.
§ 2412(d)(1)(A) (emphasis added); cf. Melkonyan v. Sulli-
van,2 501 U.S. 89, 93–95 (1991). Our decision thus rests on
2 In Melkonyan v. Sullivan, the Supreme Court con-
sidered the timing requirement for an EAJA fee applica-
tion. 501 U.S. 89, 93–95 (1991). Pursuant to statute,
parties have thirty days from entry of “final judgment in
the action” to submit an EAJA fee application. 28 U.S.C.
§ 2412(d)(1)(B). The Supreme Court held that
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GREENIDGE v. COLLINS 7
whether Mr. Greenidge was the prevailing party in his ac-
tion before the Veterans Court.
We next consider the meaning of “prevailing party.”
EAJA does not define “prevailing party” in the veterans’
benefits context. But cf. 28 U.S.C. § 2412(d)(2)(H) (defining
prevailing party for purposes of eminent domain cases).
But Congress has included the term in several fee-shifting
statutes, and the Supreme Court’s approach has been “to
interpret the term in a consistent manner” across statutes.
CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 422
(2016). For that reason, we may rely on cases interpreting
“prevailing party” in the context of other fee-shifting stat-
utes for guidance. See id.
The “touchstone of the prevailing party inquiry” is
whether there has been a “material alteration of the legal
relationship of the parties in a manner which Congress
sought to promote in the fee statute.” Tex. State Tchrs.
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93
(1989). The Supreme Court has provided insight into what
qualifies: Parties are “prevailing” where they secure an en-
forceable judgment on the merits, even if only for nominal
damages, or a court-ordered consent decree. See Buckhan-
non Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Hum. Res., 532 U.S. 598, 604 (2001). But a party does not
prevail, for example, where the filing of the lawsuit results
in a voluntary change in the defendant’s behavior. See id.
at 605. Such a voluntary change in the defendant’s
subsection (d)(1)(B)’s reference to “‘final judgment in the
action’ plainly refers back to the ‘civil action . . . in any
court’ in (d)(1)(A).” Melkonyan, 501 U.S. at 94. And thus
the “final judgment” that triggers the window to file an
EAJA application “can only be the judgment of a court of
law.” Id. The relevant court of law in this case is the Veter-
ans Court.
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GREENIDGE v. COLLINS 8
behavior “lacks the necessary judicial imprimatur on the
change” to confer prevailing party status under fee-shifting
statutes. Id.
B
With this background in mind, we now turn to the
question before us: whether the Veterans Court’s vacatur
of the Board’s decision and accompanying dismissal of
Mr. Greenidge’s appeal confers prevailing party status on
Mr. Greenidge under EAJA. We conclude that it does.
i
Mr. Greenidge predominantly relies on cases assessing
prevailing party status in the context of a court’s remand
to an administrative agency. He appears to suggest that
the Veterans Court’s decision, while not actually a remand,
was functionally one because its practical effect was to al-
low his NOD-initiated appeal of the RO’s SSOTC to ad-
vance. Mr. Greenidge applies our court-to-administrative-
agency remand test—which considers, in part, whether
“the plaintiff secure[d] a remand requiring further agency
proceedings because of alleged error by the agency”—to
suggest that he is entitled to prevailing party status on the
present facts. See Motorola, 336 F.3d at 1366. The govern-
ment disagrees with Mr. Greenidge’s characterization of
the Veterans Court’s decision and argues that our remand-
specific precedent is inapplicable.
On this point, we agree with the government and the
Veterans Court. The Veterans Court vacated the Board’s
decision and dismissed the appeal; it did not issue a re-
mand order. See EAJA Decision, 37 Vet. App. at 222
(“there was no remand to the Board in this case”);
J.A. 157–58. Our remand-specific prevailing party test is
thus inapplicable. And our agency-remand caselaw is rele-
vant only to the extent that it is in the remand context that
we have held that the Veterans Court proceeding is sepa-
rate and distinct, for purposes of EAJA, from the
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GREENIDGE v. COLLINS 9
underlying proceeding for benefits before the agency. See,
e.g., Motorola, 336 F.3d at 1364–67; Gurley v. Peake,
528 F.3d 1322, 1327 (Fed. Cir. 2008). To the extent either
party attempts to liken the Veterans Court’s vacatur and
dismissal to a remand, we find that argument unpersua-
sive. The Veterans Court was correct to reject it. EAJA De-
cision, 37 Vet. App. at 221–23. On this ground alone, we
dispense with many of the parties’ arguments.
ii
We therefore return to the touchstone of our prevailing
party analysis—whether there has been a “material alter-
ation of the legal relationship of the parties in a manner
which Congress sought to promote in the fee statute.” Tex.
State Tchrs. Ass’n, 489 U.S. at 792–93. Mr. Greenidge as-
serts that he succeeded on the merits of his Veterans Court
appeal when he secured vacatur of the Board’s decision.
And he contends that success constituted a material alter-
ation in his legal relationship with the government suffi-
cient to confer prevailing party status given that the
Board’s adverse, binding, and ultra vires decision was un-
done.
The Veterans Court rejected this rationale, finding
that the court’s disposition “merely afforded” Mr. Green-
idge the opportunity to have his “‘otherwise finally denied
[motion] reconsidered by the Board’ and was accompanied
by ‘no discussion directed to the merits of the [motion].’”
EAJA Decision, 37 Vet. App. at 223 (alteration in original)
(quoting Winters v. Wilkie, 898 F.3d 1377, 1384 (Fed. Cir.
2018)). The government recycles this rationale on appeal,
arguing that securing the “opportunity to continue pursu-
ing his claim before VA” is an outcome that this court has
held insufficient to confer prevailing party status. See Ap-
pellee Br. 9–10; cf. Akers v. Nicholson, 409 F.3d 1356, 1360
(Fed. Cir. 2005) (“A boxer thrown out of the ring and then
allowed back in to continue the fight has not prevailed; sim-
ilarly, neither appellant here meets the requirements for
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GREENIDGE v. COLLINS 10
‘prevailing party’ status.”). Even further, the government
suggests that the Veterans Court could not have altered
the legal relationship between the parties. It notes that be-
cause the Board acted without jurisdiction to decide the
merits of Mr. Greenidge’s benefits claim, the Veterans
Court also lacked jurisdiction to decide the merits: “With-
out the power to consider Mr. Greenidge’s appeal, the Vet-
erans Court could not provide him with any kind of merits
relief that would have been required to make him a pre-
vailing party under EAJA.” Appellee Br. 11.
The government’s arguments on appeal reflect a focus
on whether Mr. Greenidge has prevailed in his efforts to
secure an earlier effective date on the basis of CUE. See id.
at 9–10. But that focus disregards our caselaw holding that
the judicial review action is separate from the underlying
administrative proceeding for benefits. For prevailing
party status under EAJA, the veteran is required to prevail
in his claim for review of agency action, which does not al-
ways implicate the underlying claim for benefits. See
Motorola, 336 F.3d at 1364–67. Mr. Greenidge’s claim be-
fore the Veterans Court was that the Board exceeded its
jurisdiction by taking up and deciding his claim without a
jurisdiction-conferring NOD. And he succeeded on the mer-
its of that claim when the Veterans Court vacated the er-
roneous Board decision. In doing so, the Veterans Court
effected a material change in the parties’ legal relationship
of the kind which Congress sought to promote in EAJA—it
vacated an otherwise binding and adverse decision from
the Board. See Kelly, 463 F.3d at 1353 (noting that the core
objective of EAJA is to remove financial deterrents from
seeking review of “unjustified governmental action” (cita-
tion omitted)).
The government’s cited cases do not change this result.
For example, the government cites Robinson v. O’Rourke,
891 F.3d 976 (Fed. Cir. 2018), to suggest that a Veterans
Court order that simply allows for “additional considera-
tion” of the veteran’s claims does not constitute a material
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GREENIDGE v. COLLINS 11
change in the relationship between the parties. Appellee
Br. 9 (quoting 891 F.3d at 985). However, in Robinson we
emphasized that the “additional consideration” the veteran
secured “was not predicated on an allegation that the
Board had acted improperly.” 891 F.3d at 985. Nor could it
be—there, the Veterans Court had simply exercised its dis-
cretion to remand to allow the veteran to raise an otherwise
waived argument. See id. To the extent the relief
Mr. Greenidge secured here is characterized as “additional
consideration” of his CUE claim, this relief was predicated
on the Board acting improperly. Robinson is inapplicable.
The government also relies on this court’s decision in
Halpern v. Principi, 384 F.3d 1297 (Fed. Cir. 2004). There
the Veterans Court vacated an adverse Board decision and
remanded with instructions to dismiss for lack of original
jurisdiction. Halpern, 384 F.3d at 1306. The government
suggests the circumstances here “are even less favorable to
a prevailing party finding than in Halpern, because the
Veterans Court dismissed Mr. Greenidge’s appeal rather
than remanding.” Appellee Br. 15. But Halpern differs ma-
terially both because it arose in the context of a remand
and because the Veterans Court never reached the merits
of the agency review action. In Halpern, the Board decided
in the first instance that an attorney was not entitled to a
percentage of a veteran’s award because of deficiencies in
the fee agreement. Halpern, 384 F.3d at 1299–1300. The
attorney appealed the merits of that denial to the Veterans
Court but, while his appeal was pending, moved to vacate
the Board’s decision for lack of original jurisdiction. Id.
at 1300. The Veterans Court granted Mr. Halpern’s mo-
tion, and he requested fees under EAJA. Id. In denying pre-
vailing party status, we emphasized that the Veterans
Court never reached the merits of Mr. Halpern’s appeal to
the Veterans Court, which contested his entitlement to
withheld fees. See id. at 1306. In contrast, here Mr. Green-
idge’s appeal to the Veterans Court was focused entirely on
the Board’s ultra vires actions, and he prevailed on the
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GREENIDGE v. COLLINS 12
merits of that claim when he secured vacatur of the Board’s
decision. Cf. Motorola, 336 F.3d at 1367 (“The consent na-
ture of the remand order does not deprive appellants of pre-
vailing party status.”).
This appeal differs from those cases cited by the gov-
ernment in which we have denied prevailing party status
because the Veterans Court did not reach the merits of the
appeal. See Cavaciuti v. McDonough, 75 F.4th 1363, 1367
(Fed. Cir. 2023) (denying prevailing party status where
Veterans Court dismissed petition as moot); Winters,
898 F.3d at 1384 (no prevailing party status where “discre-
tionary vacatur and remand” was “predicated solely on the
interest of judicial economy”); cf. Veterans Legal Advoc.
Grp. v. Collins, No. 24-1759, 2026 WL 1520498, at *3
(Fed. Cir. June 1, 2026) (“We therefore hold that a court or-
der requiring a party only to confirm its voluntarily taken
corrective actions for purposes of assessing mootness does
not bear sufficient judicial imprimatur to confer prevailing-
party status.”). Here, the Veterans Court awarded Mr.
Greenidge the primary relief he sought—vacatur of the un-
derlying ultra vires Board decision.
The facts leading to this appeal are unique and our
holding correspondingly narrow. It is uncommon that a vet-
eran’s appeal to the Veterans Court is divorced from the
underlying merits of their request for benefits and even
more uncommon that the veteran seeks vacatur of an ultra
vires Board decision. Where the Board acts ultra vires in
preemptively issuing an adverse decision before any juris-
diction-conferring NOD is filed, the veteran’s success in ob-
taining vacatur of that decision confers prevailing party
status under EAJA.
III
We have considered the government’s remaining argu-
ments and find them unpersuasive. The judgment of the
Veterans Court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
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GREENIDGE v. COLLINS 13
REVERSED AND REMANDED
COSTS
Costs to Appellant.
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