UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-0502(E)
DARALD G. BLY, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued July 12, 2016 Decided October 7, 2016)
Brandon Selinsky, with whom Joseph A. Whitcomb was on the brief, both of Denver,
Colorado, for the appellant.
Justin P. Zimmer and Kenneth A. Walsh, with whom Leigh A. Bradley, General Counsel;
Mary A. Flynn, Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General
Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before KASOLD, BARTLEY, and GREENBERG, Judges.
KASOLD, Judge, filed the opinion of the Court. GREENBERG, Judge, filed an opinion
concurring in part and dissenting in part.
KASOLD, Judge: Pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d),
veteran Darald G. Bly applies through counsel for an award of attorney fees and expenses in the
amount of $4,909.58. The Secretary moves for dismissal because the application was filed 1 day
beyond the statutory 30-day filing deadline for an EAJA application. See 28 U.S.C. § 2412(d)(1)(B)
(requiring that EAJA applications be filed within 30 days of a court's final judgment). Mr. Bly
argues that his filing was timely, and, alternatively, that the time to file should be equitably tolled.
A panel was convened to determine whether the doctrine of equitable tolling applies to the EAJA
filing period, and, if so, whether Mr. Bly has demonstrated entitlement to such tolling. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990); U.S. VET. APP. INTERNAL OPERATING PROCEDURE (IOP)
I(b)(2), (4). We hold that the statutory 30-day period in which to file an EAJA application is subject
to equitable tolling, but Mr. Bly has not established entitlement to equitable tolling. Accordingly,
Mr. Bly's EAJA application will be dismissed as untimely.
I. BACKGROUND & PARTIES' ARGUMENTS
On January 5, 2016, the Court ordered that the parties' joint motion for partial remand
(JMPR) addressing the merits of Mr. Bly's underlying appeal be granted. The January 5 order states
that "[u]nder Rule 41(b) of the Court's Rules of Practice and Procedure, this order is the mandate of
the Court." On February 5, 31 days after the order of mandate issued, Mr. Bly submitted his EAJA
application. Because the application was filed beyond the statutorily required filing period, Mr. Bly
was ordered to show cause why his application should not be dismissed as untimely filed. Mr. Bly
argues that the January 5, 2016, Court order granting the parties' JMPR was not a "final judgment"
because, under Rule 36 of the Court's Rules of Practice and Procedure ("Rules" or U.S. VET. APP.
R.), he had 60 days after judgment to appeal to the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit). He therefore contends that his EAJA application filed on February 5, 31 days after
the January 5 order, was timely.
The parties were subsequently ordered to file supplemental memoranda addressing
(1) whether the filing period for an EAJA application is subject to equitable tolling, and, if so, what
standard should govern such tolling, (2) whether equitable tolling was warranted in this case, and
(3) whether there were alternative means other than tolling of ensuring that Mr. Bly's potential VA-
benefits award would not be reduced if the EAJA application was dismissed as untimely. Mr. Bly
argues that equitable tolling applies to late-filed EAJA applications and urges the Court to adopt a
standard of equitable tolling that inquires only into whether a veteran would be financially harmed
without tolling and whether the Government would be prejudiced by tolling. Under this standard,
Mr. Bly argues that – should the EAJA application be deemed untimely filed – he is entitled to
equitable tolling because (1) any benefits award on remand would be reduced by contingent attorney
fees that otherwise would have been offset dollar-for-dollar by an EAJA award, leading to a smaller
overall award for Mr. Bly, and (2) the Government would not be prejudiced by the timing of the
EAJA application.
2
With regard to alternative means of ensuring that his potential overall award would not be
reduced by an offset of attorney's fees, Mr. Bly asserts in his supplemental memorandum that he has
no alternative means. At oral argument, he asserted that the Court may not review his attorney fee
agreement because the merits portion of the case had been remanded to the Board and was no longer
pending before the Court.
The Secretary agrees that equitable tolling is applicable to the filing period for an EAJA
application, but he argues that the test for equitably tolling the time to file an EAJA application is
the same as the general test for equitably tolling a statutory time period, to wit: whether an
extraordinary circumstance prevented the timely filing despite due diligence.1 See, e.g., Lozano v.
Montoya Alvarez, __U.S.__, __, 134 S. Ct. 1224, 1231-32 (2014) (describing the general
requirements for the application of the doctrine of equitable tolling). The Secretary further argues
that equitable tolling is not applicable in this case because the late filing here was due to counsel's
unjustified misunderstanding of the Rules, which constitutes nothing more than garden variety
negligence. See Secretary's Supplemental Memorandum in Response to the Court's May 31, 2016
Order (Secretary's Memo) at 10 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)
(noting "the principles of equitable tolling . . . do not extend to what is at best a garden variety claim
of excusable neglect")). To this end, the Secretary not only cites the Court's Rules and caselaw, he
also presents evidence that he had informed Mr. Bly's attorney by email that Mr. Bly would be
required to file the EAJA application within 30 days after the January 5, 2016, Court order granting
the JMPR.
With regard to any harm to Mr. Bly, the Secretary argues that there are at least three
alternative methods for ensuring that, absent the grant of an EAJA award, a veteran's overall award
is not reduced by the offset of attorney's fees: (1) The Court may reduce any fee due under the
attorney-client contract if it finds these fees excessive or unreasonable, see Secretary's Memo at 13
(citing 38 U.S.C. § 7263); (2) the Secretary may likewise reduce any fee due under the attorney-
client contract for the same reason, see Secretary's Memo at 13-14 (citing 38 U.S.C.
1
In his brief, the Secretary presents an attorney's incapacitating mental or physical illnesses that directly results
in untimely filing as an additional justification for the application of equitable tolling; we consider such an occurrence
to be within the meaning of an "extraordinary circumstance."
3
§ 5904(c)(3)(A)); or (3) a veteran may file a malpractice suit against a counsel who untimely filed
an EAJA application, see Secretary's Memo at 14.
II. ANALYSIS
A. Mr. Bly's EAJA application was untimely filed.
Mr. Bly argues that his EAJA application filed on February 5, 31 days after the January 5
order, was timely because on February 5 final judgment had not entered and he still had time to
appeal. His argument is incorrect as a matter of law.
A party seeking an EAJA award must file an application for attorney fees and costs under
EAJA within 30 days of a court's final judgment. 28 U.S.C. § 2412(d)(1)(B). The U.S. Court of
Appeals for Veterans Claims is explicitly included in the statute's definition of "court." 28 U.S.C.
§ 2412(d)(2)(F). The statute defines the term "final judgment" as "a judgment that is final and not
appealable" and "includes an order of settlement." 28 U.S.C. § 2412(d)(2)(G).
Rule 39 of the Court's Rules of Practice and Procedure states in relevant part:
An application pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act
(EAJA), for award of attorney fees and/or other expenses shall be submitted for filing
with the Clerk not later than 30 days after the Court's judgment becomes final. See
Rule 36 (Entry of Judgment) and Rule 41 (Mandate). The time for filing an
application under this subsection is set by statute.
U.S. VET. APP. R. 39.
Under Rule 36, judgment is effective on "the date of a Court order on consent (i) dismissing,
terminating, or remanding a case . . . when the order states that it constitutes the mandate of the
Court." U.S. VET. APP. R. 36(b)(1)(B). The practitioner's note for Rule 36 states:
Judgment is relevant to determining the expiration of time in which to file an appeal
of a decision of the Court or file an application pursuant to 28 U.S.C. § 2412(d).
Because entry of mandate on the docket is a ministerial act and may not occur on the
date of mandate, practitioners are cautioned to use diligence when calculating time
periods so as to ensure timely filings. See Rule 41.
U.S. VET. APP. R. 36
Rule 41 states that "[m]andate is when the Court's judgment becomes final and is effective
as a matter of law pursuant to 38 U.S.C. § 7291." U.S. VET. APP. R. 41(a). Mandate generally
4
occurs 60 days after judgment is entered unless "(1) a timely notice of appeal to the U.S. Court of
Appeals for the Federal Circuit is filed with the Clerk . . . or (2) mandate was issued as part of an
order on consent (i) dismissing, terminating, or remanding a case . . . or (3) the Court directs
otherwise." U.S. VET. APP. R. 41(b) (emphasis added). The practitioner's note for Rule 41 states:
Mandate is relevant to determining the expiration of time in which to file an appeal
of a decision of the Court or file an application pursuant to 28 U.S.C. § 2412 (d).
Because entry of mandate on the docket is a ministerial act and may not occur on the
date of mandate, practitioners are cautioned to use diligence when calculating time
periods so as to ensure timely filings.
U.S. VET. APP. R. 41.
Here, the January 5, 2016, Court order granting the JMPR, a consensual motion, explicitly
referenced Rule 41(a) and stated that the order was the mandate of the Court. Rule 41(a) makes it
clear that mandate is a final judgment and it enters when issued as part of an order granting a
consensual motion to remand a case. It is not clear why Mr. Bly's counsel focused on Rule 36 when
Rule 41(a) was cited in the Court's remand order. However, Rule 36 also states that judgment is
effective on the date of an order granting a consensual motion to remand a case when such order
states that it is the mandate of the Court. Moreover the practitioner's note to Rule 36 specifically
directs practitioners to see Rule 41. Additionally, practitioner's notes for both Rule 36 and Rule 41
recognize the importance of mandate and judgment dates pursuant to an EAJA application and
caution practitioners to use diligence in calculating filing deadlines.
Rule 39, which explicitly addresses EAJA applications, also clearly states that such
applications are to be filed not later than 30 days after judgment becomes final, and the rule
immediately thereafter references Rules 36 and 41. See U.S. VET. APP. R. 39. Finally, our
precedential caselaw states that, "an order granting a joint motion for a remand, which pursuant to
Rule 41(b) also constitute[s] the mandate, is final and not appealable." See Bowers v. Brown, 8 Vet.
App. 25, 27 (1995). Succinctly stated, Mr. Bly fails to demonstrate that his EAJA application was
timely filed. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of
demonstrating error on appeal), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
5
B. Equitable Tolling for Untimely-Filed EAJA Applications
Both parties agree that equitable tolling is permissible with regard to EAJA applications that
are filed late. Although the Court previously has held that equitable tolling does not apply to EAJA
application deadlines, that determination was predicated on the time to file being "a jurisdictional
prerequisite to government liability for attorney fees." See Grivois v. Brown, 7 Vet.App. 100, 101
(1994). However, in Scarborough v. Principi, 541U.S. 401 (2004), the Supreme Court of the United
States (Supreme Court) determined that the 30-day filing period for an EAJA application, pursuant
to 28 U.S.C. § 2412(d)(1)(B), was not "jurisdictional" because the EAJA statute concerns a "mode
of relief" in matters over which the U.S. Court of Appeals for Veterans Claims already had
jurisdiction. See Scarborough, 541 U.S. at 413-14 (citing Kontrick v. Ryan, 540 U.S. 443, 454-45
(2004)). Although Scarborough did not reach the question of whether equitable tolling applied to
EAJA applications, the Supreme Court cited Irwin, 498 U.S. at 95-96, for the proposition that there
is a "rebuttable presumption that equitable tolling is available in litigation that Congress has
authorized against the United States," see 541 U.S. at 421 n.8 (internal quotation marks omitted).
Relying upon Scarborough, the 6th Circuit Court of Appeals held in Townsend v. Comm'r
of Soc. Sec., 415 F.3d 578, 583 (6th Cir. 2005), that the EAJA application filing deadline is subject
to equitable tolling. The Court finds Townsend persuasive. Accordingly, we hold that the doctrine
of equitable tolling may be applied to the 30-day time limit for filing an EAJA application.
C. Standard for Equitable Tolling for Late-Filed EAJA Applications
"As a general matter, equitable tolling pauses the running of, or 'tolls,' a statute of limitations
when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him
from bringing a timely action." Lozano, __U.S. at __, 134 S. Ct. at 1231-32. The Federal Circuit
has applied these general requirements in veteran's benefits cases where the statutory period for filing
a Notice of Appeal has been missed. See, e.g., Checo v. Shinseki, 748 F.3d 1373, 1378-80 (Fed. Cir.
2014) (adopting "stop-clock approach" to equitable tolling for a Notice of Appeal's 120-day filing
period that requires the claimant to demonstrate (1) an extraordinary circumstance, (2) due diligence,
and (3) causation).
As noted above, Mr. Bly proposes an alternative standard for equitable tolling in EAJA
application cases based on two inquiries: (1) Whether the veteran would be financially harmed if the
6
EAJA petition were to be dismissed as untimely, and (2) whether the Government would be
prejudiced by tolling the EAJA filing deadline. In support of his proposal, he cites Molden v. Peake,
22 Vet. App. 177, 181 (2008) (suspending the practitioner requirement of Rule 46 of the Court's
Rules of Practice and Procedure because of the potential financial harm to the veteran in the
dismissal of the EAJA application) and a concurring opinion in Morrow v. McDonald, 27 Vet.App.
92 (2014) (Greenberg, J., concurring) (proposing the test Mr. Bly now advocates). We do not find
these citations apposite or persuasive.
Molden held that a premature EAJA application, filed prior to mandate, may be held and
treated as later filed. See Molden, 22 Vet. App. at 181 (citing March v. Brown, 7 Vet. App. 163, 166
(1994), aff'd, 74 F.3d 1260 (Fed. Cir. 1996)). Molden did not involve equitable tolling; rather, it
involved an attorney whose EAJA application did not comply with Court Rules as to representation.2
As to Morrow, the concurring opinion is not precedential and, with great respect for our
colleague–who happens to be the same Judge writing separately in this case–we are not convinced
that a separate test is warranted for assessing equitable tolling in EAJA application cases. Indeed,
the standard for determining tolling of an EAJA application deadline proposed by our colleague and
now by Mr. Bly would essentially swallow the statutory rule that an EAJA application is due within
30 days of final judgment. See 28 U.S.C. § 2412(d)(1)(B). This is because in virtually every case
where an EAJA application is untimely filed in this Court there could be eventual financial harm to
a veteran who is successful, on remand, in receiving an award of benefits. Although financial harm
to veterans and VA claimants is a concern, there are other ways to avoid such harm – beyond carving
out a novel test for applying equitable tolling when an EAJA application is untimely, as discussed
in section II.E below.
2
Although our dissenting colleague relies on Molden for the suggestion that the consequences of a failure to
follow Court Rules should be waived based on prejudice to the veteran, we note that Molden did not involve
noncompliance with a statutory rule or equitable tolling of a statutory filing period. Moreover, the Supreme Court has
rejected the mere absence of prejudice as a sufficient basis for determining when the doctrine of equitable tolling should
be applied, and we see no reason for holding otherwise. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152
(1984) ("Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable
tolling should apply once a factor that might justify such tolling is identified, it is not an independent basis for invoking
the doctrine and sanctioning deviations from established procedures."). Finally, as discussed in section II.E of our
opinion, the Secretary may consider whether a fee agreement might be excessive or unreasonable when an agreed offset
of EAJA fees cannot be consummated because the attorney failed to timely file an EAJA application.
7
D. Applying Equitable Tolling
The Court concludes that Mr. Bly has not alleged, much less demonstrated, the existence of
an extraordinary circumstance. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("Generally, a
litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."); see
also Checo, 748 F.3d at 1378-80. Mr. Bly did not suggest, either in his March 10, 2016, response
to the Court's show cause order or in his June 30, 2016, supplemental memorandum of law, that
Rules 36 and 41 were confusing. Counsel alluded to that possibility at oral argument, but, on
questioning, stated that he had no confusion. He reiterated the view that he believes he had 60 days
to file an appeal to the Federal Circuit under Rule 36 and that, therefore, the EAJA application was
not untimely. Oral Argument at 15:35-18:05, Bly v. McDonald, U.S. Vet. App. No 15-0502 (argued
July 12, 2016), http://www.uscourts.cavc.gov/oral_arguments_audio.php. In response to further
questioning, counsel admitted that he was not involved in calendaring the due date for the EAJA
application, and he had not questioned those in his firm regarding any confusion. Id. at 19:10-19:45.
As noted earlier, the Court's January 5, 2016, remand order expressly stated that the order
served as mandate and cited Rule 41, which states that "[m]andate generally is 60 days after
judgment entered unless . . . mandate was issued as part of an order on consent . . . remanding a
case." U.S. VET. APP. R. 41(b). Additionally, the Secretary presented evidence that Mr. Bly's
attorney was informed via email from Secretary's counsel that Mr. Bly was required to file the EAJA
application within 30 days after the January 5, 2016, Court order granting the JMPR. See Secretary's
Memo at 9-10. Although Mr. Bly asserted at oral argument that he was not bound by advice from
opposing counsel, he offered no reason why such advice might not have prompted him to review the
Rules. See, e.g., Townsend v. Soc. Sec. Admin., 486 F.3d 127, 134-35 (6th Cir. 2007) (finding that
it should have been clear to Townsend that a denial of a motion did not reset the deadline,
particularly where research would have revealed the proper filing deadlines and where a diligent
applicant would have filed an EAJA application sooner). Further, if Mr. Bly was unsure of the
EAJA filing deadline after reviewing the January 5, 2016, order and the Court's Rules, a review of
the applicable caselaw would have informed him that "an order granting a joint motion for a remand,
which pursuant to Rule 41(b) also constitute[s] the mandate, is final and not appealable," Bowers,
8
8 Vet. App. at 27, and thus there would be no need to allow for a 60-day appeal period to the Federal
Circuit, see also Westfall v. McDonald, 27 Vet.App. 341, 344-45 (2015) (addressing the distinctions
between judgment, date of mandate, and entry of mandate).
Therefore, the Court finds that the untimely filing of Mr. Bly's EAJA application due to
attorney misunderstanding of the correct filing date, where research would have revealed the filing
period, is not an extraordinary circumstance. See Townsend, 486 F.3d at 134 (tolling not warranted
where diligent research would have revealed the correct filing deadline); see also Irwin, 498 U.S.
at 96 (noting "the principles of equitable tolling . . . do not extend to what is at best a garden variety
claim of excusable neglect"). In sum, Mr. Bly has not shown an extraordinary circumstance, or, for
that matter, due diligence, that would warrant tolling of the EAJA filing period.3
E. Protecting Any Past-Due Benefits Award
The Secretary argues that there are means of ensuring that any potential past-due benefits
award that Mr. Bly receives on remand is not reduced as a result of dismissal of the untimely EAJA
application. Secretary's Memo at 11-16. He suggests that the Court might find the contingency
portion of the fee agreement unreasonable "because the untimely filing of the EAJA application
deprived the appellant of the potential reimbursement that would have resulted from a grant of
past-due benefits and an EAJA award."4 See Id. at 14-15.
We agree with the Secretary that 5904 and 7263 of title 38, U.S. Code, provide authority to
the Secretary and the Court to consider whether a fee agreement might be excessive or unreasonable
when an agreed offset of EAJA fees cannot be consummated because the attorney failed to timely
file an EAJA application. See 38 U.S.C. § 7263(c) ("The Court, on its own motion or the motion
3
Although we agree with our dissenting colleague that attorneys should be encouraged to represent veterans,
we do not agree that our holding today discourages that goal. Indeed, we believe our holding today should encourage
attorneys to be diligent in their adherence to statutory requirements and Court orders. Cf. Mohasco Corp. v. Silver, 447
U.S. 807, 826 (1980) ("In the long run, experience teaches that strict adherence to the procedural requirements specified
by the legislature is the best guarantee of evenhanded administration of the law."). Similarly, although we agree that
lawyers should be paid for their work, EAJA awards are payable to the client, not the attorney, see, e.g., Phillips v. Gen.
Servs. Admin., 924 F.2d 1577, 1582 (Fed. Cir. 1991) (per curiam) (noting that EAJA fees are paid to the prevailing party,
not the attorney), and the fee ultimately paid to Mr. Bly's attorney will be determined pursuant to their agreement.
4
As the Secretary also argues, veterans and VA claimants may bring legal malpractice actions against counsel.
Secretary's Memo at 14. Cf. Overton v. Nicholson, 20 Vet.App.427, 445 n. 2 (2006) (Lance, J., concurring) ("To the
extent that an attorney may be incompetent, the law does not leave a claimant without remedy. The claimant's remedy
is against the attorney in a claim for legal malpractice.").
9
of any party, may review . . . a fee agreement."); 38 U.S.C. § 7263(d) (in reviewing a fee agreement
under section 7263(c), the Court may "order a reduction in the fee called for in the agreement if it
finds that the fee is excessive or unreasonable"); 38 U.S.C. § 5904(c)(3)(A) (Secretary may reduce
fee as excessive or unreasonable upon claimant's request). As to section 5904, it is clear that the
Board has the authority to consider whether a fee agreement is excessive or unreasonable. See Scates
v. Gober, 14 Vet. App. 62, 64 (2000) ("The Board is specifically provided with original jurisdiction
as to fee agreements, to 'review' sua sponte or at the request of either party a fee agreement filed with
the Board, and it 'may order a reduction in the fee called for in the agreement if the Board finds that
the fee is excessive or unreasonable.'" (citing 38 U.S.C. § 5904(c)(2))), aff'd as modified sub nom.
Scates v. Principi, 282 F.3d 1362, 1366-69 (Fed. Cir. 2002) (noting that the regional office, not the
Board, is the appropriate agency to make factually specific inquiries necessary to resolve the attorney
fee dispute).
The Court has repeatedly affirmed that the statutory history governing payment of attorney
fees in the VA benefits context reflects "congressional intent to protect veterans benefits from
improper diminution by excessive legal fees," and the Court has noted that many veterans could be
deprived of rightful benefits if the Court allowed all attorneys, without regard to individual
circumstance, to collect a full 20% of past-due benefits. Lippman v. Shinseki, 23 Vet.App. 243, 253-
54 (2009) (quoting Scates, 282 F.3d at 1366). Caselaw is clear that in reviewing fees for
reasonableness, the Secretary may consider not only the factors set forth in 38 C.F.R. § 14.636(e)
but also other factors pertinent to the specific circumstances of the case. See Lippman, 23 Vet.App.
at 253-54 (referencing § 14.636(e) factors as well as those set forth in Scates, 282 F.3d at 1368-69,
where during the appeal process an attorney was replaced with a successor); Lippman v. Nicholson,
21 Vet.App. 184, 189-90 (2007) (noting that, "in the veterans-claim context . . . direct payment of
attorney fees is limited by law to 20 percent of past-due benefits, and is further limited to a
reasonable fee under the circumstances of the case" (emphasis added)); see also § 14.636(e) (2016)
(indicating that considerations relevant to determining reasonableness of fees include extent and type
of services performed, complexity of case, level of skill and competence required, time spent, results
achieved, level of review to which the claim was taken and at which the attorney was retained, rate
charged by other representatives, and whether and to what extent payment was contingent on results).
10
Thus, because protection against benefit diminution by potentially excessive or unreasonable fees
is an important concern consistent with congressional intent, should Mr. Bly be awarded past-due
benefits on remand, any fee agreement review by the Secretary may consider the fact that the Court
dismissed the EAJA application as untimely.
Additionally, contrary to Mr. Bly's assertion at oral argument that his appeal is not currently
pending before the Court and the Court therefore may not review his attorney fee agreement, Mr.
Bly's EAJA application is "'a component part of an integrated case' and not a separate action from
the merits phase of the litigation," and the Court therefore has jurisdiction to review the existing fee
agreement. See Jackson v. Shinseki, 23 Vet.App. 27, 31 (2009) (citing Comm'r, INS v. Jean,
496 U.S. 154, 161-62 (1990)). Although the Court is empowered to review and modify the attorney
client fee agreement in this case, see id., the underlying merits case was remanded for further
adjudication such that any award of benefits remains speculative at this point. Accordingly, we
believe it appropriate that the Secretary take into consideration our holding today when considering
the payment of any attorney fees under 38 U.S.C. § 5904(c)(3)(A), a decision that ultimately will "be
subject to de novo review by this Court," see Carpenter v. Principi, 15 Vet. App. 64, 70 (2001).
III. CONCLUSION
Upon consideration of the foregoing, Mr. Bly's EAJA application is DISMISSED as
untimely.
GREENBERG, Judge, concurring in part and dissenting in part:
I concur in the holding that the 30-day period in which to file an application under EAJA is
subject to equitable tolling, but respectfully dissent from the holding that equitable tolling is not
applicable in this case.
On January 5, 2016, the Court issued an order granting a motion for partial remand in the
appellant's appeal. That order served as the mandate of the Court. See U.S. VET. APP. R. 41(b)
("Mandate is when the Court's judgment becomes final and is effective as a matter of law pursuant
to 38 U.S.C. § 7291."). On February 5, 2016, 31 days later, the appellant applied through counsel,
11
pursuant to EAJA, 28 U.S.C. § 2412(d), for an award in the amount of $4,909.58 for attorney fees
and expenses.
On February 11, 2016, the Court ordered the appellant to show cause why the EAJA
application should not be dismissed as untimely. See U.S. VET. APP. R. 39 ("An application pursuant
to [EAJA] shall be submitted for filing with the Clerk not later than 30 days after the Court's
judgment becomes final. See Rule 36 (Entry of Judgment) and Rule 41 (Mandate)."). On March 10,
2016, the appellant filed a response, alleging that the application for fees was within 30 days of the
Court's decision becoming final because the Court's January 5, 2016, order was not final, as the
appellant had 60 days from that order to appeal the ruling.
The deadline for submitting applications for fees and other expenses under EAJA–within 30
days of final judgment from the Court–was set by Congress in 28 U.S.C. § 2412(d)(1)(B) for EAJA
applications generally and not merely at this Court. The Court has previously "strictly enforced" the
30-day filing deadline. See, e.g., Strouth v. Brown, 8 Vet.App. 502, 503 (1996) ("The 30-day filing
deadline is strictly enforced and the appellant's failure to submit an EAJA application within this 30-
day time constraint precludes the Court on the facts of this case from considering the merits of the
fee application.").
However, the statutory time limit is not jurisdictional. See Scarborough, 541 U.S. at 414
("[T]he 30-day deadline for [EAJA] applications and its application-content specifications are not
properly [termed] 'jurisdictional.'"). Justice Ginsburg's ruling in that case would suggest that, as with
the statutory time limit regarding appeals to this Court, equitable tolling may apply to the 30-day
deadline. See Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam order) (holding that the
120-day filing period for a Notice of Appeal was subject to equitable tolling). Other courts have
similarly ruled. See Townsend v. Comm'r of Soc. Sec., 415 F.3d 578, 583 (6th Cir. 2005) ("[W]e
conclude that based on the Supreme Court's decision in Scarborough, the EAJA time limitation for
fee applications is subject to equitable tolling."); Froelich v. Astrue, 561 F. Supp. 2d 1044, 1045-46
(D. Minn. 2008) ("Accordingly, this Court holds that EAJA's time limitation is subject to equitable
tolling.").
Lawyers should be paid for work done before this Court where the work results in a palpable
benefit to the veteran. We should encourage lawyers to represent veterans, not place needless
12
additional obstacles on the long road toward an adequate award. See Henderson v. Shinseki, 562
U.S. 428, 431 (2011) ("The VA's adjudicatory 'process is designed to function throughout with a
high degree of informality and solicitude for the claimant.'" (quoting Walters v. Nat'l Ass'n of
Radiation Survivors, 473 U.S. 305, 311 (1985))).
The application was filed 1 day late, and there is no evidence of prejudice to the Secretary
as a result of that delay. See Froehlich, 561 F. Supp. 2d at 1045 ("Under the circumstances present
here, where the fee application was filed one day late . . . and there is no evidence of prejudice to the
Defendant, the Court will toll the applicable limitations period and hold Plaintiff's application to be
timely."). Further, the appellant's fee agreement indicates that the amount owed by him to his
attorney will be offset, dollar-for-dollar, by an EAJA award. Fee Agreement at 1-2 ("[T]hen the fee
owed by the client to the attorney will be 20% of the lump-sum owed by VA to the client minus the
award of attorney's fees that the attorney received under the EAJA."). The Court is guided by the
principle that "[t]he prospect of financial harm to the veteran is a concern to the Court; if dismissal
may financially disadvantage the appellant, and 'where the error is not egregious and is easily
remedied,' the Court will not dismiss an EAJA application." Molden, 22 Vet. App. at 181 (2008)
(citing Martins v. Principi, 19 Vet.App. 20, 23 (2005) (refusing to dismiss an EAJA application for
failure to comply with Court Rules)); see also Carpenter v. Principi, 15 Vet.App. 64, 75
(2001)("[P]rotecting the interests of the veteran is paramount.").
Penalizing an attorney for filing 1 day late where there is no prejudice to the Government,
not only unnecessarily penalizes the veteran, but also may have chilling effects on worthy veterans
obtaining adequate representation. It is for this reason that I dissent.
13