Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bly v. Shulkin

United States Court of Appeals, Federal Circuit

March 2, 2018

DARALD G. BLY, Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

         Appeal from the United States Court of Appeals for Veterans Claims in No. 15-502, Judge Margaret C. Bart-ley, Judge William Greenberg, Senior Judge Bruce E. Kasold.

          Brandon Michael Selinsky, Rocky Mountain Disability Law Group, Denver, CO, argued for claimant-appellant.

          Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Patricia M. McCarthy; Y. Ken Lee, Jonathan 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 remand.

         Background

         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).

         Discussion

         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. ยง 7292(a); Fed. R. App. P. 4(a)(1)(B)(iii). Mr. Bly argues that the Veterans Court's judgment was not yet ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.