883 F.3d 1374
Fed. Cir.2018Background
- Bly appealed a BVA denial of service connection for bilateral hearing loss to the Veterans Court; the parties filed a joint motion for partial remand and the Veterans Court granted it on January 5, 2016, stating the order "constitutes the mandate of the Court."
- Bly filed an EAJA fee application 31 days after the remand order (February 5, 2016). The EAJA requires fee applications be filed "within thirty days of final judgment in the action."
- The Veterans Court held Bly’s EAJA application untimely because, under its rules, the remand order was immediately "final" and the mandate effective on issuance, so the 30-day EAJA deadline began on January 5.
- Bly appealed the Veterans Court’s timeliness ruling to the Federal Circuit, which considered whether the EAJA’s definition of "final judgment" controls over conflicting local rule definitions.
- The Federal Circuit concluded that for EAJA purposes a consent remand becomes "not appealable" only after the ordinary appeal period expires (60 days), and thus Bly’s EAJA filing was timely; the court vacated and remanded for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court’s consent remand was "final and not appealable" for EAJA timing when issued | Bly: judgment not "final and not appealable" until 60-day appeal period expired, so EAJA application timely | Gov: remand orders on consent have limited appealability and should be treated as immediately not appealable | Held: For EAJA timing, consent remand becomes not appealable after the normal appeal period (60 days); Bly’s filing was timely |
| Whether local court rules can shorten EAJA deadlines by defining finality differently than statute | Bly: EAJA statute controls; local rules cannot override | Gov: relied on Veterans Court rules to treat remand as immediately final | Held: Statute controls; local rules cannot alter EAJA’s definition of final judgment |
| Whether the remand order qualified as an "order of settlement" under EAJA’s definition of final judgment | Bly: remand is not settlement because underlying dispute remains | Gov: remand order could be treated as settlement | Held: Remand here is not an "order of settlement" because it does not end the underlying dispute |
| Whether adopting a uniform rule (appeal period controls) causes undue delay in BVA jurisdiction reclaim | Gov: rule would delay BVA reclaim and harm veterans | Bly: mandate issuance and EAJA finality are separable; Veterans Court can issue mandate promptly | Held: No necessary conflict; mandate practice can preserve prompt BVA jurisdiction while EAJA timing runs from appeal period expiration |
Key Cases Cited
- Dover v. McDonald, 818 F.3d 1316 (Fed. Cir.) (recognizing EAJA fees may follow Veterans Court remand)
- Thompson v. Shinseki, 682 F.3d 1377 (Fed. Cir.) (EAJA application principles in veterans cases)
- Synopsys, Inc. v. Ricoh Co., 661 F.3d 1361 (Fed. Cir.) (local rules cannot override federal statute)
- Durr v. Nicholson, 400 F.3d 1375 (Fed. Cir.) (Veterans Court rules may not alter statutory jurisdictional limits)
- Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367 (Fed. Cir.) (adopted uniform rule for EAJA timing after voluntary dismissal)
- Williams v. Principi, 275 F.3d 1361 (Fed. Cir.) (remand orders to BVA generally not final)
- Wagner v. Shinseki, 733 F.3d 1343 (Fed. Cir.) (mandate issuance can be required despite pending EAJA matters)