concurring:
The appellant timely filed his Equal Access to Justice Act application on February 3, 1995. On February 8, 1995, a few days after the 30-day filing period under 28 U.S.C. § 2412(d)(1)(B) had expired, he filed a motion to amend his application to include an affidavit that his net worth was less than $2 million at the time he filed his appeal.
I am constrained by the Court’s opinion in Bazalo v. Brown, 9 Vet.App. 304 (1996), and must concur in the majority opinion dismissing this appeal. However, as explained in my dissenting opinion in Bazalo, 9 Vet.App. at 312-19, I feel that the better rule would be to allow the supplementation, as was done in Dunn v. United States, 775 F.2d 99 (3d Cir.1985). The Third Circuit’s rationale in Dunn for allowing supplementation was that there is a distinction between the “filing” requirement of section 2412(d), which merely requires a filing sufficient to put the government on notice that EAJA fees are being sought, and the “pleading” requirements, because “[t]he two requirements serve different purposes.” Id. at 103. The filing requirement serves the purposes of “finality and reliance”, whereas the pleading requirements serve as “fleshing out of the details”. Id. at 104. Thus, “absent prejudice to the government or noncompliance with court orders for timely completion of the fee determination”, the Third Circuit has held that a petition to supplement an EAJA application will be allowed. Ibid.
Dunn itself concerned a timely-filed application that “mention[ed] neither a specific amount of fees requested, nor an itemized statement of the actual time expended and the rate at which fees and expenses are computed.” Id. at 101. Supplementary affidavits with itemized fee statements were filed within three weeks after the 30-day time limit had expired. Id. at 102. In the instant case, just as in Dunn, the government was adequately put on notice by the timely EAJA application filing, and would not have been prejudiced by the Court’s granting of the appellant’s motion to supplement filed five days later.