DARALD G. BLY, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
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.
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.
Dyk, Reyna, and Hughes, Circuit Judges.
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.
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.
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).
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.
timely appealed the Veterans Court's denial of his
application to this court. We have jurisdiction pursuant to
38 U.S.C. § 7292(c).
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
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 ...