Lead Opinion
Opinion for the court filed by Circuit Judge RICH. Dissenting opinion filed by Circuit Judge SCHALL.
Charles W. Bazalo (Bazalo) appeals from a dismissal by the United States Court of Veterans Appeals (Court of Veterans Appeals) for lack of subject matter jurisdiction over his application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1994). We reverse and remand.
Background
After remand of Bazalo’s complaint, on which his EAJA application is based, to the Board of Veterans’ Appeals, Bazalo filed a timely application for attorney fees and expenses under EAJA. The Secretary of Veterans Affairs (Secretary) filed a motion to dismiss Bazalo’s EAJA application for lack of subject matter jurisdiction, however, because he had not alleged that he was an eligible party or that his net worth did not exceed $2,000,000.
The pertinent section of the EAJA reads: A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses • which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.
28 U.S.C. § 2412(d)(1)(B). A “party” is defined, in part, as “an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed_” 28 U.S.C. § 2412(d)(2)(B).
The Court of Veterans Appeals promulgated Rule 39 to set forth the requirements of an EAJA application under the Court’s Rules of Practice and Procedure. Rule 39 required that the applicant provide a statement that he is a prevailing party and is eligible to receive an award; that he identify the specific positions of the Secretary that were not substantially justified; and that he provide an itemized statement from his attorney as to each type of service rendered. See U.S. Vet.App. R. 39.
In construing the EAJA statute, the Court of Veterans Appeals held that the use of mandatory language such as “shall” and “must” in the EAJA statute and the necessity of strict construction of the United States’ waiver of sovereign immunity established that each of the following four requirements are jurisdictional and must be met within the thirty-day filing period:
(1) a showing that the appellant is a prevailing party;
(2) a showing that the appellant is eligible for an award;
(3) an allegation that the government’s position is not substantially justified; and
(4) an itemized statement of the fees sought.
The Court of Veterans Appeals found that a showing of eligibility could be made by stating in the EAJA application that the applicant’s net worth, at the time of filing the
Discussion
The sole question presented here is whether a timely filed EAJA application may be supplemented after the expiration of the thirty-day filing requirement of § 2412(d)(1)(B) to meet an additional requirement of the section such as “eligibility” by establishing that the applicant’s net worth did not exceed $2,000,000 at the time of the filing of the civil action. We hold that such amendment may be made as long as no prejudice to the government results.
We review de novo the interpretation of statutory provisions by the Court of Veterans Appeals. Jones v. Brown,
The EAJA is a waiver of sovereign immunity of the United States and must be strictly construed. Ardestani v. INS,
I.
Bazalo relies on the Supreme Court’s mandate that interpretive doubt about the meaning of language in a statute is to be resolved in the veteran’s favor, citing Brown v. Gardner,
The Secretary argues that the United States’ waiver of sovereign immunity must be strictly construed. Strict construction of the EAJA statute requires, the Secretary argues, that we construe the use of “shall” as establishing that a showing of eligible status for an EAJA award is not a mere notice requirement, but a jurisdictional one as the Court of Veterans Appeals held. The liberal construction requirement that ambiguity is to be resolved in favor of the veteran is not applicable, the Secretary argues, because the EAJA does not involve benefits to veterans, but applies to any party prevailing against the government.
II.
We have unequivocally held that the thirty-day time limit for filing an EAJA application after final disposition of an adversary adjudication is a jurisdictional prerequisite to. an award of attorney fees. J.M.T. Mach. Co. v. United States,
Dunn filed an EAJA application which was dismissed by the district court for lack of subject matter jurisdiction because the application and accompanying affidavit did not mention a specific amount of fees requested, an itemized statement of the actual time expended, or the rates used to calculate the fees. Id. at 102. Subsequent to the thirty-day time period, however, Dunn submitted affidavits supplying the missing information. The Third Circuit reversed the district court and held that only the time for filing an EAJA application under § 2412(d)(1)(B) is a jurisdictional prerequisite, while deficiencies in the contents of the application under that section could be remedied by amendment, as long as the government was not-prejudiced by such amendment and the applicant complied with any orders for timely completion of the fee determination. Id. at 104.
The Third Circuit reasoned:
Requiring the filing of a fee claim (or any other) with the court or adjudicative agency serves the purpose of establishing a means certain for proving compliance with a time bar. Such certainty is required in most situations in the interest of finality and reliance. But once the claim is filed, whether or not it is as complete as it should be, the interests of proof of timeliness and of finality and reliance have been satisfied. What remains is the fleshing out 'of the details_
Id.
We agree with the Third Circuit that while the time limitation should be strictly met, the content of the EAJA application should be accorded some flexibility. Bazalo filed a timely EAJA application alleging that he was “a prevailing party and entitled to receive an award as shown by [the Court of Veterans Appeals’] September 29, 1994 Order. ...” In addition, Bazalo set forth the allegations as to why the United States’ position was not substantially justified and included an itemized statement of the fees sought. The only allegedly jurisdictional requirement that Bazalo did not meet is the eligibility requirement. The Court of Veterans Appeals interprets eligibility as requiring a showing that Bazalo’s net worth did not exceed $2,000,000 at the time the appeal was filed. This allegedly jurisdictional requirement is gleaned from the definition of “party” under § 2412(d)(2)(B).
We find that Bazalo’s statement that he is a prevailing “party” satisfies the eligibility requirement for jurisdictional purposes. By definition, a “party” under the EAJA statute is one with a net worth of less than $2,000,-000 at the time of filing of an appeal. Therefore, by making the statement that he was a “prevailing party” entitled to an award, Ba-zalo met the jurisdictional eligibility requirement.
The dissent asserts that our reading of the EAJA statute renders the eligibility requirement superfluous. We disagree. The statute requires that the party seeking fees show that he is eligible to receive an award under the statute. This requirement is not exclusive of the other requirements.
To be “eligible” under the EAJA statute, a party must meet the additional requirements enumerated such as showing that the party prevailed and alleging that the United States was not substantially justified in its position. The additional requirement of net worth asserted by the dissent as necessary to meet the jurisdictional threshold of the statute is not separately enumerated in the statute, but subsumed within the definition of “party.” Therefore, we have not rendered the eligibility requirement superfluous, but read it in the context of all of the requirements of the EAJA statute.
Conclusion
We hold that Bazalo’s application for attorney fees and expenses met the jurisdictional prerequisites of the EAJA statute. Therefore, the Court of Veterans Appeals had jurisdiction to hear his EAJA application.
REVERSED AND REMANDED.
Notes
. In making this determination, we need not address whether the canon of construction that
Dissenting Opinion
dissenting.
Paragraph 1 of Bazalo’s EAJA application read as follows: “the Applicant is a prevailing party and entitled to receive an award as shown by this Court’s September 29, 1994 Order vacating the BVA’s March 4, 1993 decision in the matter and remanding the case to the BVA.” This statement addressed Bazalo’s entitlement to an EAJA award because it set forth the fact that Bazalo had prevailed in the underlying litigation. See 28 U.S.C. § 2412(d)(1)(B) (1994). The application, however, contained no statement directed to the matter of Bazalo’s net worth. See 28 U.S.C. § 2412(d)(2)(B) (1994). It thus failed to address Bazalo’s eligibility for an EAJA award. See 28 U.S.U § 2412(d)(1)(B). Consequently, the application failed to meet the statutory requirement of showing that Bazalo was “a prevailing party and ... eligible to receive an award.” Id. (emphasis added). At the same time, it is undisputed that Bazalo did not seek to supplement the application within thirty days of when it was filed.
In arguing that he should have been allowed to supplement his application to show that he was eligible for an EAJA award, Bazalo advances the argument that any doubt about the meaning of § 2412(d)(1)(B) should be resolved in his favor because he is a veteran. The majority does not reach this argument. In any event, I believe that we should reject it. It is true that “provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hosp.,
Bazalo’s second argument is that he should prevail under the reasoning of the United States Court of Appeals for the Third Circuit in Dunn v. United States,
The majority states: “We agree with the Third Circuit that while the time limitation should be strictly met, the content of the EAJA application should be accorded some flexibility.” I am unable to agree. I believe that the majority errs in accepting the reasoning of Dunn. In my view, Dunn misreads § 2412(d)(1)(B) and, in so doing, ignores principles relating to waivers of sovereign immunity.
I start from the premise that the EAJA is a waiver of sovereign immunity and therefore must be strictly construed. See Ardestani v. INS,
The thirty-day time limit and the eligibility requirement are contained in the same sentence of § 2412(d)(1)(B). I do not see how the statute can be read as differentiating between a jurisdictional time requirement and a non-jurisdictional content requirement, such differentiation being the underpinning of Dunn. Rather, all of the statute’s requirements are of equal weight. See Dunn,
Proceeding from Dunn, the majority concludes that the statement in Bazalo’s EAJA application that he was “a prevailing party” served to satisfy “the eligibility requirement for jurisdictional purposes.” Based upon this conclusion, the majority holds that “[bjecause he met the jurisdictional requirements of the EAJA statute, Bazalo could supplement his filing after the thirty-day time limitation to set forth a more explicit statement about his net worth.” In arriving at this result, the majority reasons as follows:
By definition, a “party” under the EAJA statute is one with a net worth of less than two million dollars at the time of filing an appeal. Therefore, by making the statement that he was a “prevailing party” entitled to an award, Bazalo met the jurisdictional requirement.
(Footnote omitted).
I am unable to accept the majority’s reasoning. A statute is to be construed in a manner that gives meaning to all of its parts and does not render any part of the statute superfluous. See Colautti v. Franklin,
Because Bazalo’s EAJA application was defective when it was filed and because no attempt was made to supplement it within thirty days, the Court of Veterans Appeals was without authority to consider the application.
For the foregoing reasons, I respectfully dissent. I would affirm the decision of the Court of Veterans Appeals.
. The majority states that "to be 'eligible' under the EAJA statute, a party must meet the additional requirements enumerated such as showing that the party prevailed and alleging that the United States was not substantially justified in its position.” According to the majority, the "requirement of net worth ... is not separately enumerated in the statute, but subsumed within