No. 2007-7148.

528 F.3d 1322 (2008)

Randolph S. GURLEY, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals, Federal Circuit.

June 9, 2008.

Attorney(s) appearing for the Case

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Bryant G. Snee, Deputy Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, DYK and MOORE, Circuit Judges.

DYK, Circuit Judge.

Randolph S. Gurley ("Gurley") appeals a final decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") denying his application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Gurley v. Nicholson, 20 Vet.App. 573 (2007). Because we agree with the Veterans Court that Gurley is not a "prevailing party" under...

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