Caring. Effective. Efficient.

Deadline to file EAJA petition at CAVC

What is the Deep Issue in the Case?

This case involves the deadline to file an EAJA Petition at the CAVC.

The Equal Access to Justice Act ("EAJA") requires applications for attorney fees must be filed within 30 days of a court's final judgment in an action. 28 U.S.C. §2412(d)(1)(B). 

31 days after the CAVC issued an order (judgment) on a joint motion for partial remand to the BVA for his client, an attorney at the CAVC filed an application for EAJA fees. The Veterans Court rejected the EAJA Petition as untimely because it was filed 31 days after the CAVC issued its judgment and mandate (which was the same date).

Did the Court of Appeals for Veterans Claims err when it found untimely a petition for attorney fees under EAJA filed 31 days after the issuance of the CAVC's judgment?

What did the FCOA Decide?

The Federal Circuit Court of Appeals found the deadline to file a petition for attorney fees under EAJA at the CAVC was controlled by the EAJA statute, and not the CAVC's rules.

The Federal Circuit looked to the words of the EAJA statute, which require that an  EAJA petition be filed within thirty (30) days of a final judgment at the CAVC - emphasis on the word "final". 

The Secretary argued Mr. Bly's judgment was final because it was a CAVC Order on a joint motion for partial remand which, absent special circumstances, is not appealable (or better said, not likely to be appealed). 

The Federal Circuit pointed to its decision in Impresa in which it examined 2 competing approaches to determining finality of a court's judgment for purposes of an EAJA petition: the "case-specific rule" (the EAJA petition must be filed within 30 days of when a particular appeal's judgment is final) and the "uniform rule" (the EAJA petition must be filed within 30 days of the expiration of the time to appeal, without regard to a case's individual appealability). Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367 (Fed. Cir. 2008).

The Federal Circuit reaffirmed its commitment to the uniform rule as laid out in Impresa. The Court did leave an opening that they might be open to departing from the Impresa rule outside the context of the consent judgment - perhaps in the case of a settlement agreement or where the JMR contained a "no appeal" clause.

In other words, if the VA were to actually settle an entire appeal at the CAVC - which is as rare as a 3 dollar nickel - or start including language in its JMR or JMPRs that the decision is not appealable (Author's Note: as of April 11, 2018, the OGC has started to include waivers of appeal in their JMRs: click here to read the Joint Motion to Remand in Mountford v. Wilkie, 18-0346 (April 11, 2018), the timeliness of the CAVC EAJA petition could conceivably derive from the date of finality of an individual case's judgment or mandate. 

The Federal Circuit Court of Appeals noted the CAVC's rules regarding the timeliness of an EAJA petition at that court were not consistent with its holding in this case. As such, it is likely the CAVC will update its rules accordingly -- I will let you know when that happens.  It's a fascinating process (at least to a legal nerd like me)  to watch a court change its rules.

Takeaway Points for VSOs and Veterans Disability Lawyers:

1) Here's how this impacts the timing of EAJA petitions in your CAVC practice.

At the CAVC, there are 3 "decisional" documents, each triggering different options: there is the decision (or order), the judgment, and the mandate. Here's how these 3 documents work at the Veterans Court.

When the CAVC issues a memorandum or panel decision, it waits a period of time before issuing its judgment to allow for motions for reconsideration

When the CAVC issues that judgment, it typically waits 60 days to issue its mandate, during which time either party may appeal to the Federal Circuit Court of Appeals.

Typically, then, if the Memorandum or Panel Decision of the CAVC was favorable, the attorney will file an EAJA petition within 30 days of the issuance of the CAVC mandate.  

That process will not change, and it is not the scenario at issue in Bly.

Th Bly case addresses a narrow scenario that occurs when the CAVC grants a joint motion to remand or a joint motion for a partial remand. 

In those cases, the CAVC issues its judgment and mandate on the same day.

This is done to ensure that where it is less likely that an appeal will follow, the BVA can reclaim jurisdiction over the remanded appeal and expedite adjudication for the veteran.

The CAVC's procedure is really a savvy idea, and I hope it does not change as a result of this decision. It is savvy because the  grounds for appealing a "consent decree" or a JMR or JMPR are pretty narrow.

As narrow as the grounds for appealing a JMR or JMPR are, the CAVC's practice of issuing the mandate on the same day as the judgment following a JMR or JMPR can not legally limit the ability of the party to file an appeal to the Federal Circuit.

And because the deadline to file an EAJA petition at the CAVC is controlled by the date a judgment becomes final and non-appealable, the CAVC's rules cannot cut short that statutory timeline. 

Bottom line: as long as you didn't sign away your right to appeal to the Federal Circuit in your JMR or JMPR, your deadline to file an EAJA petition to the CAVC is 30 days after the Judgment of the Court is non-appealable (i.e, 60 days after the issuance of the Veterans Court's Judgment).

2) The Current Law is Not Always the RIGHT Law.

Just  because a Court rule lays out the law, and just because it has been the law, does not mean it is right. 

For YEARS, attorneys have been filing EAJA petitions on the premise that the petition was due 30 days after the issuance of the CAVC mandate.

And I know of several attorneys who were denied attorney fees because they missed the filing deadline and filed 31 days after the CAVC judgment (I know of at least one who read the rule the same way as Mr. Bly's attorney, but at the time it happened the attorney did not have the resources to seek reconsideration, a panel decision or appeal to the Federal Circuit) .

Thanks to the courage of 1 attorney who challenged the CAVC interpretation and appealed to the Federal Circuit Court of Appeals, this will no longer negatively impact veterans attorneys seeking EAJA fees at the CAVC.

There are a TON of rules like this out there. 

There are rules of law the CAVC has laid down which may be based on improper reasoning.

There are rules of law which may rely on incorrect statutory interpretations or which afford undue deference to VA regulations.

There are rules of law at the CAVC which don't consider the broader concerns of constitutionality.

This is not to say the CAVC is a bad court. Not at all.

First, the law evolves over time, and in the long life of the federal judiciary, the CAVC is a teenager who is just coming of age, jurisprudentially speaking. 

Second, new practitioners with new ideas,  more time and focused agendas are working to focus on bigger statutory and regulatory and constitutional issues at the CAVC and Federal Circuit.

Third, as more judges are appointed to and cycle through the CAVC, the unique judicial philosophies of different types of judges from different backgrounds is giving a rich and varied texture to the body of veterans  law. 

If you get a CAVC Memorandum or Panel decision that doesn't feel right, or if you feel like the CAVC is going to apply a rule that needs updating, please reach out to us at Attig | Steel - we would love to talk to you to see if the rule can be changed at the Court of Appeals for Veterans Claims or the Federal Circuit Court of Appeals.

Case Details

At the Federal Circuit:

Federal Circuit Court of Appeals Panel:

Circuit Judge Timothy B. Dyk (Opinion Author) (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Jimmie V. Reyna (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Todd M. Hughes (link to bio on Federal Circuit Court of Appeals website)

Veteran Representation at Federal Circuit: Brandon Michael Selinsky 

DOJ Attorney at Federal Circuit: Joshua E. Kurland

Date of Decision: March 2, 2018

Link to Decision on Federal Circuit Court of Appeals Website.

At the CAVC:

CAVC Panel

Senior Judge Bruce E. Kasold (CAVC Panel Opinion Author) (link to bio on CAVC website)

Judge Margaret Bartley (link to bio on CAVC website)

Judge William Greenberg (link to bio on CAVC website)(dissenting in original panel decision)

Veteran Representation at CAVC: Joseph Whitcom (on the briefs and merits)

OGC Attorney at CAVC: Justin P. Zimmer (on the briefs and merits)

Date of CAVC Decision: November 1, 2016

Link to Memorandum Decision on CAVC Website. 

At the BVA:

Regional Office:  Sioux Falls, South Dakota VA Regional Office

Vets’ Rep at BVA: Disabled American Veterans (DAV)

Board of Veterans Appeals Veterans Law Judge: Michael Martin

Date of Board Decision: November 24, 2014

Link to BVA Decision on CAVC Website


About the "Taking Point!" Blog

From veterans law, to attorney wellness, and elevating the voices of Black veterans, the law firm of Attig | Curran | Steel, PLLC, is Taking Point!

Taking Point! Blog

If you are an agent, VSO, or attorney, you have a tough decision under AMA when the BVA issues a denial of your client’s benefits. On one hand, you can file a supplemental claim. On the other, you can file an appeal to the US Court of Ap… Read More
I really can’t take it anymore. I’m sure many like you feel the same way. Every time another child with a military weapon ambushes a school full of children, I am overwhelmed with emotions that have no outlet. I can’t even process… Read More
When appellate courts review the decisions of lower courts – or in administrative law where a Court like the US Court of Appeals for Veterans Claims (CAVC) reviews the decisions of the BVA, an administrative tribunal – they use “… Read More
Let me tell you the story of two veterans. The first veteran – we’ll call him Jim – claimed he was exposed to herbicides – Agent Orange – outside of the Republic of Vietnam. After the VA spent decades denying his claim,… Read More

Read the "Taking Point!" Blog