Veteranclaims’s Blog

March 5, 2018

Bly v. Shulkin, No. 2017-1287 (Decided: March 2, 2018); Equal Access to Justice Act; EAJA; 28 U.S.C. § 2412; appealability and timeliness;

Excerpt from decision below:

” Nonetheless, we think that having a uniform rule in this area, as with
voluntary dismissals, best serves the legislative purpose of the EAJA. A uniform rule will discourage “satellite litigation” on appealability and timeliness, which would “add cost and delay while not yet reaching the merits.” Impresa, 531 F.3d. at 1372. We conclude that the consent judgment here became “not appealable” 60 days after the entry of the remand order.”


United States Court of Appeals for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-502, Judge Margaret C. Bartley,
Judge William Greenberg, Senior Judge Bruce E.
Decided: March 2, 2018
BRANDON MICHAEL SELINSKY, Rocky Mountain Disability
Law Group, Denver, CO, argued for claimantappellant.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
KRISCH, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Before DYK, REYNA, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Darald G. Bly applied for attorneys’ fees and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The Court of Appeals for Veterans Claims (“Veterans
Court”) determined that his application was untimely
under the EAJA and the Veterans Court’s own
rules. Because we find that the Veterans Court erred in
finding the EAJA application untimely, we vacate and
In November 2014, the Board of Veterans’ Appeals
(“BVA”) denied Mr. Bly’s request for service connection for
bilateral hearing loss. In February 2015, Mr. Bly timely
appealed that decision to the Veterans Court. After his
opening brief was filed, Mr. Bly and the government filed
a joint motion for partial remand to the BVA. On January
5, 2016, the Veterans Court granted the motion and
partially remanded to the BVA. Citing to Rule 41(b) of
the Veterans Court’s Rules of Practice and Procedure, the
Veterans Court noted that “this order is the mandate of
the Court.” J.A. 37.
On February 5—thirty-one days after the Veterans
Court order issued—Mr. Bly applied for attorneys’ fees
and expenses under the EAJA. We have previously established that remand orders from the Veterans Court may in some cases entitle veterans to EAJA fees and
expenses. See, e.g., Dover v. McDonald, 818 F.3d 1316, 1318–19 (Fed. Cir. 2016); Thompson v. Shinseki, 682 F.3d 1377, 1381 (Fed. Cir. 2012). Under 28 U.S.C.
§ 2412(d)(1)(B), such EAJA applications must be made
“within thirty days of final judgment in the action.” Measuring from the date of the order’s issuance, the Veterans Court found Mr. Bly’s application one day late and denied it. Bly v. McDonald, 28 Vet. App. 256, 259–61 (2016).
The Veterans Court relied on three of its own rules in
reaching this conclusion. First, Rule 39(a) restates the
EAJA’s requirement that applications be made “not later
than 30 days after the Court’s judgment becomes final.”
Second, Rule 36(b)(1)(B)(i) states, in relevant part, that
“[j]udgment is effective on . . . the date of a Court order on
consent . . . remanding a case . . . when the order states
that it constitutes the mandate of the Court.” Finally,
Rule 41(a) states that “[m]andate is when the Court’s
judgment becomes final,” and Rule 41(b) directs that
mandates are generally issued 60 days after judgment
unless “issued as part of an order on consent . . . remanding
a case” or if “the Court directs otherwise.” The Veterans
Court reasoned that its judgment became final
immediately, because the order remanded the case on
consent and stated that it was the mandate of the court.
Bly, 28 Vet. App. at 260. Because Mr. Bly’s application
followed more than 30 days after that order, the Veterans
Court found it untimely. Id.
Mr. Bly timely appealed the Veterans Court’s denial of his application to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(c).
The question in this case is not how to interpret the Veterans Court’s rules but rather the proper interpretation of the EAJA. To the extent that the Veterans Court’s
rules define finality in a way that differs from the EAJA’s definition, the statute must control for EAJA purposes. See Synopsys, Inc. v. Ricoh Co., 661 F.3d 1361, 1370 n.5 (Fed. Cir. 2011) (noting that local court rules cannot override federal statutes); Durr v. Nicholson, 400 F.3d
1375, 1382 (Fed. Cir. 2005) (holding that the Veterans Court’s rules may not alter its statutorily designated jurisdiction).
As noted above, the EAJA directs that applications for fees and expenses must be made “within thirty days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B).
The statute also provides that “‘final judgment’ means a judgment that is final and not appealable, and includes an order of settlement.” Id. § 2412(d)(2)(G). And as a
general matter, decisions of the Veterans Court are appealable to the Federal Circuit for 60 days after judgment is entered. See 38 U.S.C. § 7292(a); Fed. R. App.
P. 4(a)(1)(B)(iii). Mr. Bly argues that the Veterans Court’s judgment was not yet “final and not appealable” until 60 days after the date of the remand order. As a
result, Mr. Bly argues that his application was timely.
On the other hand, the government argues that the remand order was “not appealable” as of the date it was issued because the possible grounds for appealing a remand order are so limited. The government contends that the order should have been considered effectively final and not appealable for EAJA purposes when it issued. The question is whether the Veterans Court order here was “not appealable” as of the date it issued.
In general, parties lack standing to appeal judgments entered on consent except in limited circumstances, such as where the would-be appellant seeks to challenge the
trial court’s subject-matter jurisdiction, contends that there was no consent, or consented to the form but not the substance of the judgment. See Taylor Brands, LLC v. GB II Corp., 627 F.3d 874, 877–79 (Fed. Cir. 2010); Hoa Hong Van v. Barnhart, 483 F.3d 600, 609 & n.5 (9th Cir. 2007); Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1019(D.C. Cir. 1998); 15A Charles Alan Wright et al., Federal Practice & Procedure § 3902 (2d ed. 1992) (“[A]ppeal can be taken to claim lack of subject matter jurisdiction or
matters that would justify nullifying consent.”). But the
limited nature of these grounds does not suggest that the
Veterans Court’s order here was not subject to appeal.
We have previously confronted—and rejected—a similar
argument in the context of voluntary dismissals. See
Impresa Construzioni Geom. Domenico Garufi v. United
States, 531 F.3d 1367 (Fed. Cir. 2008). In Impresa, we
observed that the courts of appeals have taken two differing
approaches to finality for EAJA purposes. Some
circuits have adopted a categorical or “uniform rule
whereby the time for filing an EAJA request would run
from the expiration of the time for appeal, without consideration
of whether the particular final judgment would
have or could have been appealed.” Id. at 1370 (emphasis
added) (citing Hoa Hong Van, 483 F.3d 600; Scafar Contracting,
Inc. v. Sec’y of Labor, 325 F.3d 422 (3d Cir.
2003); Adams v. SEC, 287 F.3d 183 (D.C. Cir. 2002)).
Other circuits prefer “a ‘functional approach’ . . . generally
requiring the case by case exploration of whether an
appeal could have been taken by either party.” Id. (citing
Briseno v. Ashcroft, 291 F.3d 377 (5th Cir. 2002) (per
curiam); Bryan v. OPM, 165 F.3d 1315 (10th Cir. 1999)).
In the interests of providing clear guidance, removing
unnecessary obstacles to filing EAJA applications, and
preserving judicial economy, we adopted the uniform rule
for voluntary dismissals, “at least where the order of
dismissal does not specifically prohibit appeal.” Id. at
We see no reason to depart from Impresa’s uniform
rule in the context of consent judgments, at least where
the order does not specifically prohibit appeal. To be sure,
the appealability of remand orders on consent is even
more limited than that of voluntary dismissals. In particular,
remand orders to the BVA generally are not
appealable because they are not final. Williams v. Principi,
275 F.3d 1361, 1363–64 (Fed. Cir. 2002). Nonetheless,
we think that having a uniform rule in this area, as with
voluntary dismissals, best serves the legislative purpose
of the EAJA. A uniform rule will discourage “satellite
litigation” on appealability and timeliness, which would
“add cost and delay while not yet reaching the merits.”
Impresa, 531 F.3d. at 1372. We conclude that the consent
judgment here became “not appealable” 60 days after the
entry of the remand order.
The government also contends that the Veterans
Court’s remand order was “an order of settlement” and
therefore a final judgment as defined by § 2412(d)(2)(G).
We disagree. Although the order granting the joint
motion for partial remand concluded Mr. Bly’s appeal to
the Veterans Court, it did not resolve his underlying
service-connection dispute. That dispute will continue
before the BVA and, depending on the outcome, may well
return to the Veterans Court in a future appeal. We do
not think this fits within the plain meaning of “settlement.”
See, e.g., Settlement, Black’s Law Dictionary (10th
ed. 2014) (“An agreement ending a dispute or lawsuit
. . . .”).
Finally, the government asserts as a policy matter
that our approach will postpone the BVA’s reclaiming
jurisdiction over claims and, as a result, impose unnecessary
delay on veterans. We disagree. A judgment’s
finality for EAJA purposes and the issuance of a mandate
from the Veterans Court to the BVA have no necessary
connection. As it did in this case, the Veterans Court may
issue its mandate simultaneously with the issuance of a
remand order pursuant to its Rule 41(b)(2)(i) and 41(b)(3).
This would permit the BVA to reclaim jurisdiction
promptly, notwithstanding the possibility that an EAJA
application may be forthcoming before the Veterans
Court. Cf. Wagner v. Shinseki, 733 F.3d 1343, 1348–49
(Fed. Cir. 2013) (reversing the Veterans Court’s denial of
issuance of judgment and mandate notwithstanding the
pendency of a supplemental EAJA application).
We note that the Practice Note to the Veterans
Court’s Rule 41 and Rule 41 itself are inconsistent with
our holding today. The Practice Note states, “Mandate is
relevant to determining the expiration of time in which to
. . . file an application pursuant to 28 U.S.C. § 2412(d).”
Rule 41(a) states, “Mandate is when the Court’s judgment
becomes final and is effective as a matter of law pursuant
to 38 U.S.C. § 7291,” which itself directs that the Veterans
Court’s decisions are final “upon the expiration of the
time allowed for filing . . . a notice of appeal,” § 7291(a).
Rule 41(b)(2) then directs that, for certain decisions
including remand orders, mandate issues immediately.
We assume that the Veterans Court will take appropriate
steps to revise the Rule and Practice Note.
Mr. Bly’s application for attorneys’ fees and expenses
was timely filed pursuant to the EAJA.1 We vacate and
remand for the Veterans Court to consider his application
on the merits in the first instance.
Costs to Mr. Bly.
1 Mr. Bly’s application was in fact premature because
it was filed one month before the judgment became
final on March 5, 2016, but courts generally treat as
timely EAJA applications filed even before a judgment
becomes final. E.g., Brewer v. Am. Battle Monuments
Comm’n, 814 F.2d 1564, 1569–70 (Fed. Cir. 1987).

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