Nord v. Gober

10 Vet. App. 442, 1997 U.S. Vet. App. LEXIS 936, 1997 WL 643438

• Court: United States Court of Appeals for Veterans Claims
• Decided: October 20, 1997
• Docket: No. 96-949
• Status: Published

Opinions

NEBEKER, Chief Judge:

This case is before the Court on the appellant’s application for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA). For the following reasons, the Court will hold that the application was untimely filed and the Court lacks jurisdiction to entertain it.

I. FACTS

On May 28, 1997, the Court remanded the appeal in this case to the Board of Veterans’ Appeals (BVA or Board) and entered its mandate. Pursuant to 28 U.S.C. § 2412, the appellant’s EAJA application was due no later than Friday, June 27, 1997. On June 29, 1997, two days out of time, the appellant’s counsel faxed the EAJA application to the Court. On July 14, 1997, the Court ordered the appellant to show cause why her EAJA application should not be dismissed as untimely. On July 29,1997, the Court received the appellant’s response which argued that the Court’s rule regarding facsimile filing states that “a paper received by the Clerk before 7:00 am on a business day is considered as received on the preceding business day.” See U.S. Vet.App. R. 25(b)(1). Since Sunday, June 29, 1997, was not a business day, she argues that her EAJA application should be deemed filed on Friday, June 27.

II. ANALYSIS

EAJA is a waiver of sovereign immunity, and its jurisdictional provisions are to be strictly construed in the government’s favor. Grivois v. Brown, 7 Vet.App. 100, 101 (1994). The EAJA statute uses neither “filed” nor “received” when discussing EAJA applications. Rather, the statute provides that an applicant must “submit” an application “within” a certain 30-day period. See 28 U.S.C. § 2412(d)(1)(B). The Court has defined “submitted” as “received by the Court within 30 days of final judgment.” Grivois, 7 Vet.App. at 101. Because the instant case was remanded pursuant to an order granting a joint motion, the remand order was final and unappealable. Consequently, the 30-day period began to run on the date the order was issued. See Bowers v. Brown, 8 Vet.App. 25, 27-28 (1995).

The Court has consistently held that the EAJA 30-day filing deadline is to be strictly enforced and may not be waived. See Bazalo v. Brown, 9 Vet.App. 304, 309 (1996); see also Grivois, 7 Vet.App. at 101 (“The circuit courts that have considered the issue agree that EAJA’s 30-day filing deadline is to be strictly enforced”). In Grivois, the Court provided explicit guidance regarding the strictness of the 30-day period.

The timely submission of an EAJA application is a jurisdictional prerequisite to governmental liability for attorney fees. An appellant’s failure to submit an EAJA application within this 30-day time constraint precludes the Court from considering the fee application's merits. Accordingly, we hold that a party seeking an attorney fee award pursuant to EAJA must submit the fee application within thirty days of final judgment in action. We further hold that to timely “submit” an EAJA application, it must be received by the Court within 30 days of final judgment.

Grivois, 7 Vet.App. at 101 (citations omitted, quotations in original).

In the instant case, the EAJA application was not submitted within the 30-day period. Indeed, it was not until two days after the period closed that counsel took any action to submit his application to the Court. Under no interpretation of historical events was this application submitted to the Court within the applicable 30-day period.

Despite counsel’s reliance upon Rule 25(b), the plain language of that rule reveals that it does not support his position. Rule 25(b) states that a paper received by the Clerk “before 7:00 am on a business day” is considered received on the preceding business day. (Emphasis added.) This EAJA application was not received on a business day. It was received on Sunday, a non-business day. This interpretation keeps Rule 25 in harmony with the EAJA statute and case law. In addition, it avoids the appearance of an inappropriate extension of the Court’s jurisdiction.

III. CONCLUSION

Accordingly, the appellant’s EAJA application is DISMISSED.