Jensen v. Brown

Veterans Claims

Jensen v. Brown

9 Vet. App. 333, 1996 U.S. Vet. App. LEXIS 696, 1996 WL 494671

CourtUnited States Court of Appeals for Veterans Claims

DecidedAugust 30, 1996

DocketNo. 90-661

StatusPublished

Cited by1 cases

This text of 9 Vet. App. 333 (Jensen v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jensen v. Brown, 9 Vet. App. 333, 1996 U.S. Vet. App. LEXIS 696, 1996 WL 494671 (Cal. 1996).

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ORDER

PER CURIAM.

On August 15, 1995, the Court dismissed the appellant’s Equal Access to Justice Act (EAJA) application on the ground that the Court did not have jurisdiction over the application because the appellant had failed to state, before the 30-day filing period had expired, that he was a party eligible for an EAJA award or that he met the net-worth criteria for showing that eligibility. Jensen v. Brown, 8 Vet.App. 140 (1995) (per curiam order). On December 8, 1995, the Court ordered the Court’s August 15, 1995, order revoked and the case held in abeyance pending the Court’s en bane review on the issue of the Court’s jurisdiction over EAJA applications in the consolidated cases of Hamilton v. Brown, No. 92-1260, Bazalo v. Brown, No. 93-660, and Burke v. Brown, No. 94-49. Jensen v. Brown, 8 Vet.App. 364 (1995) (per curiam order). Recently, the Court issued its consolidated opinion in Bazalo v. Brown, 9 Vet.App. 304 (1996).

In Bazalo, the Court held that an appellant must submit an EAJA application that meets each of the jurisdictional requirements set forth in 28 U.S.C. § 2412(d)(1)(B) within the statutory 30-day filing period. Bazalo, 9 Vet.App. at 306. “[T]he requirements for a complete, non-defective EAJA application are: (1) a showing that the appellant is a prevailing party; (2) a showing that the appellant is eligible for an award; (3) an allegation that the government’s position is not substantially justified; and (4) an itemized statement of the fees sought.” Id. at 308; see Lematta v. Brown, 8 Vet.App. 504 (1996). After the expiration of the 30-day filing period, an appellant may not complete his defective application. Bazalo, 9 Vet.App. at 308. Unless all of the jurisdictional requirements are met within the 30-day filing period, the Court cannot consider an EAJA [334]*334application and award EAJA fees. Id. at 306.

In this case, the appellant’s timely filed EAJA application did not show that he was a party eligible for an EAJA award. See Jurgens v. Brown, 8 Vet.App. 197, 199 (1995); Golliday v. Brown, 7 Vet.App. 249, 253 (1994); Stillwell v. Brown, 6 Vet.App. 291, 298 (1994). An appellant may show that he is an eligible party by stating that his net worth at the time the appeal was filed did not exceed $2 million or by referencing an in forma pauperis ruling. Bazalo, 9 Vet.App. at 310. In the present case, after expiration of the 30-day filing period, the appellant filed a motion to amend his EAJA application to add a statement, supported by an attached affidavit, that his net worth was less than the EAJA statutory maximum. As the appellant did not show that he is an eligible party within the 30-day filing period, he did not satisfy the jurisdictional requirements of EAJA. Bazalo, supra.

On consideration of the foregoing, it is

ORDERED that the stay issued in the Court’s December 8, 1995, order is dissolved. It is further

ORDERED that the appellant’s application for reasonable attorney fees and expenses is DISMISSED.

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ORDER

PER CURIAM.

On August 15, 1995, the Court dismissed the appellant’s Equal Access to Justice Act (EAJA) application on the ground that the Court did not have jurisdiction over the application because the appellant had failed to state, before the 30-day filing period had expired, that he was a party eligible for an EAJA award or that he met the net-worth criteria for showing that eligibility. Jensen v. Brown, 8 Vet.App. 140 (1995) (per curiam order). On December 8, 1995, the Court ordered the Court’s August 15, 1995, order revoked and the case held in abeyance pending the Court’s en bane review on the issue of the Court’s jurisdiction over EAJA applications in the consolidated cases of Hamilton v. Brown, No. 92-1260, Bazalo v. Brown, No. 93-660, and Burke v. Brown, No. 94-49. Jensen v. Brown, 8 Vet.App. 364 (1995) (per curiam order). Recently, the Court issued its consolidated opinion in Bazalo v. Brown, 9 Vet.App. 304 (1996).

In Bazalo, the Court held that an appellant must submit an EAJA application that meets each of the jurisdictional requirements set forth in 28 U.S.C. § 2412(d)(1)(B) within the statutory 30-day filing period. Bazalo, 9 Vet.App. at 306. “[T]he requirements for a complete, non-defective EAJA application are: (1) a showing that the appellant is a prevailing party; (2) a showing that the appellant is eligible for an award; (3) an allegation that the government’s position is not substantially justified; and (4) an itemized statement of the fees sought.” Id. at 308; see Lematta v. Brown, 8 Vet.App. 504 (1996). After the expiration of the 30-day filing period, an appellant may not complete his defective application. Bazalo, 9 Vet.App. at 308. Unless all of the jurisdictional requirements are met within the 30-day filing period, the Court cannot consider an EAJA [334]*334application and award EAJA fees. Id. at 306.

In this case, the appellant’s timely filed EAJA application did not show that he was a party eligible for an EAJA award. See Jurgens v. Brown, 8 Vet.App. 197, 199 (1995); Golliday v. Brown, 7 Vet.App. 249, 253 (1994); Stillwell v. Brown, 6 Vet.App. 291, 298 (1994). An appellant may show that he is an eligible party by stating that his net worth at the time the appeal was filed did not exceed $2 million or by referencing an in forma pauperis ruling. Bazalo, 9 Vet.App. at 310. In the present case, after expiration of the 30-day filing period, the appellant filed a motion to amend his EAJA application to add a statement, supported by an attached affidavit, that his net worth was less than the EAJA statutory maximum. As the appellant did not show that he is an eligible party within the 30-day filing period, he did not satisfy the jurisdictional requirements of EAJA. Bazalo, supra.

On consideration of the foregoing, it is

ORDERED that the stay issued in the Court’s December 8, 1995, order is dissolved. It is further

ORDERED that the appellant’s application for reasonable attorney fees and expenses is DISMISSED.

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9 Vet. App. 333, 1996 U.S. Vet. App. LEXIS 696, 1996 WL 494671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jensen-v-brown-cavc-1996.

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