Onstad v. Brown

Onstad v. Brown, 9 Vet. App. 189, decided 1996-06-24.

IVERS, Judge: On May 29, 1991, the Court granted the parties’ joint motion for remand and vacated the underlying Board of Veterans’ Appeals decision. Pursuant to this Court’s Rules of Practice and Procedure then in effect, judgment was entered on June 28, 1991. On March 25, 1992, a VA regional office decision granted the appellant his benefits. On August 20, 1992, the appellant submitted his application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The Court filed the application on September 15, 1992. On January 26, 1994, the Court dismissed the EAJA application under Jones v. Brown, 6 Vet.App. 101 (1993), and granted the appellant’s motion for voluntary dismissal of the appeal. Judgment was entered again on February 18, 1994. The appellant appealed to the Federal Circuit, and in April 1995, following its November 1994 decision in Jones v. Brown, 41 F.3d 634 (Fed.Cir.1994), reversing 6 Vet.App. 101 (1993), the Federal Circuit remanded the matter for further proceedings. Onstad v. Brown, No. 94-7067, 1995 WL 216935 (Fed. Cir. Apr.7, 1995) (order granting motion to summarily vacate Court’s February 18, 1994, judgment). In response to an order of this Court, the appellant filed an amended EAJA application on April 26, 1995. The Secretary filed a motion to dismiss for lack of jurisdiction, which the appellant opposed.

I.

On October 29, 1992, Congress enacted section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992) [hereinafter FCAA § 506]. FCAA § 506(a) amended 28 U.S.C. § 2412(d)(2)(F) to make subsection (d) of 28 U.S.C. § 2412 applicable to this Court. FCAA § 506(b) limited such application “to any case pending before the United States Court of Veterans Appeals on the date of the enactment of this Act [October 29, 1992]” (found at 28 U.S.C. § 2412 note (Application of 1992 Amendment to Pending Cases)). The issues presented are whether this case was pending before this Court on October 29, 1992, and whether the appellant filed a timely EAJA application.

II.

“In determining the plain meaning of statutory language, ‘legislative purpose is expressed by the ordinary meaning of the words used.’ ” Jones, 41 F.3d at 638 (quoting Ardestani v. INS, 502 U.S. 129, 136, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991)); see also Brown v. Gardner, — U.S. -, - -, 115 S.Ct. 552, 554-56, 130 L.Ed.2d 462 (1994). This Court has defined “pending” to mean in the “process of settlement or adjustment.” Bowers v. Brown, 8 Vet.App. 25, 26 (1995) (quoting Black’s Law Dictionary 1134 (6th ed. 1990)). Under EAJA, “final judgment” means “a judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G).

The Federal Circuit has held that the FCAA, which authorized this Court to award attorney fees and costs under EAJA in any “ease” or “appeal” pending on the date of the enactment of the FCAA, does apply to pending EAJA applications for legal services performed on the merits of a case which was decided prior to the date of enactment of the FCAA. Jones, 41 F.3d at 640-41. The Federal Circuit reasoned that “If Congress had intended ‘case’ or ‘appeal’ to include only cases pending ‘on the merits of an underlying action,’ it would have used language to that effect.” Id. at 638-39. Thus, this appellant’s EAJA application was received by the Court *191on August 20, 1992, and filed on September 15, 1992, and was, therefore, pending before this Court on October 29, 1992, when the FCAA was enacted and became effective. Jones and Bowers, both supra.

The question thus becomes whether the EAJA application was timely filed. The timely submission of an EAJA application is a jurisdictional prerequisite to governmental liability for attorney fees. Action on Smoking & Health v. CAB, 724 F.2d 211, 225 (D.C.Cir.1984). The Court promulgated former Rule 36(b) on June 1, 1993, retroactive to October 29, 1992. Under this rule, the Court’s practice was to retain jurisdiction for EAJA purposes and not enter “final judgment” until the filing of the postremand administrative decision. The former Rule 36(b) stated:

(b) Upon Remand. When a matter is remanded in a case in which the appellant is represented, unless the opinion, decision, or order specifies otherwise, the Court retains jurisdiction for the limited purpose of entertaining an application for attorney fees and expenses under Rule 39.. Within 14 days after the final postremand administrative decision in such a case, the Secretary shall file a copy of that decision with the Clerk. After receiving that decision, the Clerk shall enter final judgment, unless good cause is shown why such judgment should not be entered, and shall send copies to all parties.

U.S.Vet.App.R. 36(b), 4 Vet.App. CXXXIV (1993). Then, following the Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), this Court issued its opinion in Stillwell v. Brown, 6 Vet.App. 291 (1994). Stillwell decided that (1) Schaefer controls remands ordered by this Court and (2) the provisions of then Rule 36(b) were inconsistent with, and did not comply with, the formalities of Schaefer. Id. at 299-300. By order of March 11,1994, this Court repealed Rule 36(b). The order also provided that in those cases in which jurisdiction had been retained for the limited purpose of entertaining EAJA applications, the Clerk was to enter an unqualified judgment and to provide notice to the appellants advising them that to be timely, EAJA applications must be filed within 30 days after the new judgments had become final. 6 Vet.App. XXV-XXVT (1994).

On January 26, 1994, the Court issued an order dismissing the appellant’s EAJA application and granting his motion for voluntary dismissal of the appeal. A second, unqualified judgment was entered on February 18, 1994. Although jurisdiction was not specifically retained when the initial judgment was entered on June 28,1991, entry- of the second judgment conformed to the Court’s pre-Still-well practice of issuing a qualified judgment after a remand order, retaining limited jurisdiction for EAJA purposes, and then issuing a second judgment, once the results of the postremand administrative proceedings were known. See Stillwell, 6 Vet.App. at 298. As in the EAJA cases where the Clerk entered unqualified judgments pursuant to the Court’s March 11, 1994, order, 6 Vet.App. XXV-XXVII, the appellant’s thirty-day EAJA filing period would not start to run until the second judgment became final and unappealable. On April 6, 1995, the Federal Circuit vacated this Court’s February 18, 1994, judgment, and issued its own mandate on April 7, 1995, remanding for further proceedings on the EAJA application. The appellant filed an amended motion for attorney fees on April 26, 1995. Pursuant to section 7291(b)(2)(A) of title 38, United States Code, the decision of the Court rendered today shall become final thirty days after the date of its issuance. Thus, because the appellant’s August 20,1992, EAJA application was “not untimely even though premature because the appeal period had not run,” Still-well, 6 Vet.App. at 299-300, the appellant’s EAJA application will be deemed to be filed at the expiration of the thirty-day period. Id. at 300. Therefore, the Court holds that the appellant has submitted a timely EAJA application and that this Court has jurisdiction to entertain the matter. Schaefer and Stillwell, both supra.

III. CONCLUSION

The appellant’s application for attorney fees is timely. The Secretary’s motion to dismiss is DENIED. Accordingly, the Secretary, within thirty days after the date of *192this decision, shall file a response to the appellant’s EAJA application. The matter is returned to the screening judge for further disposition.

Onstad v. Brown, 10 Vet. App. 1, decided 1996-11-14.

KRAMER, Judge, concurring:

I write separately to address the application of former Rule 36(b) of this Court’s Rules of Practice and Procedure to this ease. Former Rule 36(b) was adopted on June 1, 1993, and applied to any appeal pending in the Court on or after October 29, 1992. Although in this case judgment had been entered on June 28, 1991, because the appellant’s appeal was pending on October 29, 1992, by virtue of his EAJA application, see Jones v. Brown, 41 F.3d 634 (Fed.Cir.1994), reversing 6 Vet.App. 101 (1993), former Rule 36(b) was applicable. Under the Rule, remanded eases were given qualified judgments. Therefore, the June 28, 1991, final judgment, by operation of the Rule, became qualified. When Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) and then this Court’s Stillwell v. Brown, 6 Vet.App. 291 (1994), dismissed, 46 F.3d 1111 (Fed.Cir.1995), were decided, throwing out the concept of qualified judgments, the Court by order of March 11,1994; repealed former Rule 36(b); and provided that in those cases in which jurisdiction had *2been retained for the limited purpose of entertaining EAJA applications, the Clerk was to enter an unqualified judgment; and provided notice to the appellants advising them that to be timely, EAJA applications must be filed within 30 days of entering the unqualified judgments. As that was not done in this case, the appellant’s filing period would not begin to run until the Clerk enters an unqualified judgment, thus making the appellant’s EAJA application timely. See Stillwell, 6 Vet.App. at 299-300.

ORDER

PER CURIAM. On July 15, 1996, the Secretary filed a timely motion for reconsideration of this Court’s June 24, 1996, opinion. In the opinion the Court concluded that the appellant had filed a timely application for attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and denied the Secretary’s motion to dismiss. Onstad v. Brown, 9 Vet.App. 189 (1996). Pursuant to the Federal Circuit’s mandate in Onstad v. Brown, 52 F.3d 345 (1995), the appellant’s EAJA application was a case pending on October 29, 1992, the date of enactment of section 506 of the Federal Courts Administration Act of 1992 (FCAA), which authorized this Court to award costs and fees under EAJA. See Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992); Jones v. Brown, 41 F.3d 634 (Fed.Cir.1994). This Court held that the appellant’s EAJA application was timely, although it was not filed within thirty days of a 1991 order granting the parties’ joint motion for remand, because entry of a second judgment in February 1994 conformed to the Court’s practice at that time of issuing two judgments for EAJA purposes. Onstad, 9 Vet.App. at 191; see Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Stillwell v. Brown, 6 Vet.App. 291 (1994), dismissed on other grounds, 46 F.3d 1111 (Fed.Cir.1995).

In the motion for reconsideration and full Court review, the Secretary cites Bowers v. Brown, 8 Vet.App. 25 (1995), for the proposition that even where, as here, a joint remand was granted prior to the change in the law brought about by Shalala and Stillwell, an EAJA application would be considered untimely if it was “not filed within the requisite 30 days.” Id. at 28. While this language is correct under current precedent, it does not describe the Court’s practice prior to the issuance of the Stillwell opinion on March 11, 1994. Moreover, because the Bowers holding rested on the Court’s conclusion that EAJA did not apply to that case which was not pending on the date of enactment of the FCAA, the language regarding the timeliness issue is dictum.

On consideration of the foregoing, the pleadings of the parties, and the record on appeal, it is by the panel

ORDERED that the Secretary’s motion' for reconsideration is DENIED. It is further

ORDERED that the Secretary, -within thirty days after the date of this order, shall file a response to the appellant’s EAJA application.