## Facts

- A veteran’s surviving spouse sought VA death pension benefits as the veteran’s “surviving spouse.”
- The couple married in 1966, separated around 1968, never divorced, and did not resume cohabitation before the veteran’s death in 1988.
- VA and the Board of Veterans’ Appeals (BVA) denied benefits, finding the claimant at fault for the continued separation under the continuous-cohabitation requirement in 38 U.S.C. § 101(3).
- While the claimant’s appeal was pending, intervening precedent clarified that “fault” for continuous cohabitation is assessed based on the spouse’s conduct at the time of separation.
- The parties filed a joint motion; the court vacated the BVA decision and remanded for readjudication under the clarified standard.
- The claimant then applied for attorney’s fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

## Issues

1. Whether the claimant was a “prevailing party” for EAJA purposes after obtaining an order vacating and remanding the BVA decision.
2. Whether the position of the United States (agency action and litigation stance) was “substantially justified” under 28 U.S.C. § 2412(d)(1)(A).
3. Whether any other EAJA eligibility or procedural requirements barred an award.

## Decision

- The court denied the EAJA application.
- The court treated the vacatur-and-remand order as favorable relief for the claimant but denied fees because the Secretary’s overall position was substantially justified.
- The court concluded the government’s pre-remand approach, though later shown incorrect by intervening precedent, had a reasonable basis in law and fact at the time and the Secretary promptly agreed to remand once the law was clarified.

## Legal Principles

- Under EAJA, a court must award fees to a prevailing party unless the government’s position was substantially justified or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A).
- “Position of the United States” includes both the agency’s underlying action and the government’s litigation position.
- “Substantially justified” means justified to a degree that could satisfy a reasonable person (i.e., having a reasonable basis in law and fact), even if ultimately incorrect.
- A vacatur-and-remand can support prevailing-party status for EAJA purposes, but fees remain unavailable if the government’s position was substantially justified.

## Conclusion

The court denied EAJA fees because, despite the claimant securing a vacatur-and-remand after intervening precedent changed the legal framework for assessing continuous cohabitation, the Secretary’s pre-remand interpretation and litigation conduct were reasonably grounded at the time and therefore substantially justified.


Stillwell v. Brown, 6 Vet. App. 291 (1994)