Darald G. Bly v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 1535
| Vet. App. | 2016Background
- On January 5, 2016 the Court granted a joint motion for partial remand (JMPR) and the order stated it "constitutes the mandate of the Court."
- EAJA applications must be filed within 30 days of a court’s "final judgment" under 28 U.S.C. § 2412(d)(1)(B).
- Bly filed an EAJA application on February 5, 2016 — 31 days after the January 5 order — and the Secretary moved to dismiss as untimely.
- Bly argued the January 5 order was not a final judgment because Rule 36 allows 60 days to appeal to the Federal Circuit, so his EAJA filing was timely; alternatively he sought equitable tolling.
- The Secretary conceded equitable tolling can apply to EAJA deadlines but argued the ordinary equitable-tolling test (extraordinary circumstance + due diligence + causation) governs and that counsel’s misunderstanding of the Rules is mere negligence and not extraordinary.
- The Court held EAJA’s 30-day filing period is subject to equitable tolling but Bly failed to show extraordinary circumstances or due diligence; the EAJA application was dismissed as untimely. The Court also explained alternative remedies to protect any past-due benefits (fee-review authority under 38 U.S.C. §§ 5904, 7263).
Issues
| Issue | Bly's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Was Bly’s EAJA application timely? | Filing on Feb 5 was within 30 days because judgment was not final (Rule 36 allowed 60 days to appeal). | The Jan 5 remand order expressly served as mandate under Rule 41 and was final; filing was 1 day late. | Untimely — Jan 5 order was final mandate; Feb 5 filing was late. |
| Is the 30-day EAJA filing period subject to equitable tolling? | Equitable tolling should apply (and Bly urged a liberal two-factor test based on veteran harm and government prejudice). | Equitable tolling is available but under the ordinary test: extraordinary circumstance + due diligence + causation. | Yes — EAJA’s 30-day period is tollable; ordinary equitable-tolling framework applies. |
| What standard governs equitable tolling for EAJA applications? | Proposed simplified test: toll if veteran would suffer financial harm and Government not prejudiced. | Apply the general Supreme Court standard (extraordinary circumstance + due diligence + causation). | Apply the traditional standard (extraordinary circumstance + due diligence + causation); Bly’s proposed test rejected. |
| Did Bly meet the equitable-tolling standard? | Counsel’s misunderstanding of timing justified tolling (only 1-day delay; no government prejudice; financial harm to veteran). | Counsel’s mistake was garden-variety negligence; research and notice showed the correct deadline; no extraordinary circumstance. | No — Bly failed to show extraordinary circumstance or due diligence; tolling denied; application dismissed. |
| If EAJA dismissed, can veteran’s past-due benefits be protected from fee diminution? | Argued no adequate alternative means. | Court and Secretary can review/reduce contingent attorney fees under statutes and regulations; malpractice remedies also available. | Court agrees alternative remedies exist (fee-review under 38 U.S.C. §§ 5904, 7263 and Board/regulatory review); Secretary should consider the dismissal when reviewing fee reasonableness. |
Key Cases Cited
- Scarborough v. Principi, 541 U.S. 401 (Supreme Court) (EAJA filing deadline is not jurisdictional and IRWIN presumption of tolling applies)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (Supreme Court) (presumption that equitable tolling is available against the United States and garden-variety neglect is not enough)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (Supreme Court) (general description of equitable tolling requirements)
- Townsend v. Comm’r of Soc. Sec., 415 F.3d 578 (6th Cir.) (EAJA deadline subject to equitable tolling)
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir.) (applying traditional equitable-tolling elements in veterans’ cases)
- Bowers v. Brown, 8 Vet.App. 26 (Vet.App.) (order granting joint motion to remand that constitutes mandate is final and not appealable)
- Molden v. Peake, 22 Vet.App. 177 (Vet.App.) (discussing treatment of improper EAJA filings and protection of veterans from financial harm)