Cleary v. Brown

I concur in the majority’s decision to the extent that the appellant’s application under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) is granted. I dissent from the majority’s holding that the Court did not have the power to retain jurisdiction in its November 1992 memorandum decision in the underlying appeal, and I would award EAJA fees for the postremand representation before the Board of Veterans’ Appeals (BVA or Board).

The majority’s holding is wrong because it does not explain (nor could it) how jurisdiction returned to the BVA from this Court at the time of its memorandum…