United States Court of Appeals for the Federal Circuit
November 9, 1999
CHARLES L. TORREY, CLAIMANT-APPELLANT,
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Before Mayer, Chief Judge, Michel and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge
Charles Torrey challenges the decision of the Court of Appeals for Veterans Claims, denying his claim for fees and costs under the Equal Access to Justice Act (EAJA). The Court of Appeals for Veterans Claims held that EAJA fees were not warranted under 28 U.S.C. § 2412(d) because the government's position with respect to Mr. Torrey's claim for veterans' benefits was substantially justified. On appeal, Mr. Torrey argues that the court misinterpreted 38 U.S.C. §§ 5107(a), (b) by failing to impose a duty on the Board of Veterans Appeals (Board) to consider a change in the applicable law that was scheduled to take effect during Mr. Torrey's 120-day period for appeal.
For the reasons set forth in Haywood v. West, No. 99-7056 (Fed. Cir. Oct 28, 1999), we remand this case to the Court of Appeals for Veterans Claims for adjudication of Mr. Torrey's statutory interpretation claim.
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