Bazalo v. Brown

10 Vet. App. 154, 1997 U.S. Vet. App. LEXIS 203, 1997 WL 106817

• Court: United States Court of Appeals for Veterans Claims
• Decided: March 11, 1997
• Docket: No. 93-660
• Status: Published

Opinions

ORDER

PER CURIAM.

On November 20, 1996, counsel for the appellant filed a motion for reconsideration of the Court’s August 16, 1996, opinion dismissing the application for fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. Bazalo v. Brown, 9 Vet.App. 304 (1996) (en banc). Counsel also filed a motion for leave to file the motion for reconsideration out of time.

The application for fees complied with neither the requirement of 28 U.S.C. § 2412(d)(1)(B) nor the Court’s former Rule 39. As to the former, the appellant made no statement that his “net worth at the time the appeal was filed did not exceed $2 million” nor referenced the filing of a motion to waive filing fees under Rule 24 of the Court’s Rules of Practice and Procedure. Bazalo, 9 Vet.App. at 309; Owens v. Brown, 10 Vet.App. 65 (1997). As to the latter, the appellant made no statement that “he is eligible to receive an award.” U.S. Vet.App. R. 39(b)(1). His statement that he was “entitled to receive an award as shown by this Court’s September 29, 1994, Order vacating the Board of Veterans’ Appeals’ (BVA) March 4, 1993, decision in the matter and remanding the case to the BVA,” was not related to the question of the appellant’s net worth; rather, it was related to the Court’s action in remanding the case to the BVA. The application was, therefore, jurisdictionally defective. It is

ORDERED that the motion for leave to file the motion for reconsideration out-of-time is granted. Upon consideration of the foregoing, the pleadings of the parties, and the record on appeal, it is further

ORDERED that the motion for reconsideration of the Court’s August 16, 1996, opinion is DENIED.