Rаndall C. SCARBOROUGH, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 00-7172.
United States Court of Appeals, Federal Circuit.
Feb. 13, 2003.
1346
Brian Wolfman, Public Citizen Litigation Group, of Washington, DC, for claimant-appellant. Of counsel on the brief was Peter J. Sarda, Wallace, Creech & Sarda, L.L.P., of Raleigh, NC.
Joseph Trautwein, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were
Before MAYER, Chief Judge, RADER, and LINN, Circuit Judges.
Opinion of the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit Judge MAYER.
LINN, Circuit Judge.
Randall C. Scarborough (“Scarborough“) appeals from a dismissal by the United States Court of Appeals for Veterans Claims (“Veterans’ Court“) for lack of subject matter jurisdiction over his application for attorney fees and expenses under the Equal Access to Justice Act (“EAJA“),
Following remand from the Supreme Court, this court‘s mandate was vacated, the case was returned to the panel, and we requested additional briefing from the parties regarding the applicability of Edelman to the current case. Scarborough v. Principi, 47 Fed.Appx. 931 (Sept. 18, 2002). Based on the Supreme Court‘s instruction and the supplemental briefing from the parties, we have reconsidered this case and, once again, affirm the decision of the Veterans’ Court, dismissing Scarborough‘s EAJA application for lack of subjеct matter jurisdiction.
After prevailing in the underlying litigation, but before the Veterans’ Court entered its mandate, Scarborough submitted an application for attorney fees and expenses to the Veterans’ Court under the EAJA,
On December 3, 1999, the Government filed a motion to dismiss the EAJA application for lack of subject matter jurisdiction. The Government argued that Scarborough had failed to satisfy all of the jurisdictional requirements under the EAJA statute because the application was missing an allegation that the Government‘s position in the underlying litigation lacked substantial justification. On December 9, 1999, Scarborough responded by filing an amendment to his EAJA application, supplying the previously omittеd allegation that the Government‘s position lacked substantial justification.
The Veterans’ Court examined the EAJA statute and held that each of the required parts of an EAJA fee application was a jurisdictional requirement that must be met within the thirty-day filing period, including the requirement that the applicant allege that the Government‘s position is “not substantially justified.” See
DISCUSSION
A. Standard of Review
In reviewing decisiоns of the Veterans’ Court, this court “shall decide all relevant questions of law, including interpreting ... statutory provisions.”
B. Analysis
“The EAJA renders the United States liable for attorney‘s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity.” Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991). Such a waiver “must be strictly construed in favor of the United States,” id., and “not enlarged beyond what the language requires.” United States v. Nordic Vill., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (citation omitted). Once the government provides the waiver, “the terms of its consent to be sued in any court define that court‘s jurisdiсtion to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). We must, however, take care not to “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).
(1) showing that the applicant is a “prevailing party;”
(2) showing that the applicant “is eligible to receive an award;”
(3) showing “the amount sought,” together with an itemization in support thereof; and
(4) alleging that the position of the United States “was not substantially justified.”
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 on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall аlso allege that the position of the United States was not substantially justified.
“[T]he starting point in every case involving construction of a statute is the language itself.” Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977). We first examine the language to determine the plain meaning of the words used by Congress. Bazalo v. West, 150 F.3d 1380, 1382 (Fed.Cir.1998). In the absence of a clearly expressed legislative intention to the contrary, the statutory language must ordinarily be regarded as conclusive. Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). “If the statute is clear and unambiguous, that is the end of the matter, for the court ... must give effect to the unambiguously expressed intent of Congress.” Sullivan v. Stroop, 496 U.S. 478, 482, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990) (citation omitted). However, “where the text itself does not clearly exclude alternate interpretations, we look first to the legislative history for illumination of the intent of Congress.” Deluxe Corp. v. United States, 885 F.2d 848, 850 (Fed.Cir.1989) (citing Shriners Hosps. v. United States, 862 F.2d 1561, 1563 (Fed.Cir.1988)).
Here, the EAJA specifies that a party seeking an award of fees shall submit an application within the thirty-day time limit.
The issue in this appeal is whether the fourth requirement of the EAJA statute, that “the party shall also allege that the position of the United States was not sub-
The majority opinion in Dunn in effect cleaved
Requiring the filing of a fee claim (or any other) with the court ... sеrves 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....
The Eleventh Circuit in Singleton adopted the reasoning of Dunn and likewise found that an EAJA application may be supplemented after the thirty-day time limit to satisfy the requirements regarding net worth and the Government‘s position being “not substantially justified.” Singleton, 231 F.3d at 858. The class action plaintiffs in Singleton challenged a policy of the Social Sеcurity Administration (“SSA“) involving payment of retroactive disability benefits in “random” fashion, resulting in the loss of Medicaid benefits for plaintiffs in certain states. Id. at 854. After the SSA reversed its policy and the court remanded for a determination of retroactive benefits due, the plaintiffs filed an application under the EAJA which arguably failed to allege that the plaintiffs met the net worth requirement and that the United States’ position in the district court was not substantially justified. Id. at 855, 857. The court found that a timely EAJA fee application may be supplemented to meet the requirements of
While it appears clear from the legislative history that Congress intended the filing requirement to be jurisdictional, it is far from apparent that Congress intended that “strict compliance with the pleading requirements must be accomplished within the same time as filing.”
Id. (quoting Dunn, 775 F.2d at 103).
Both Singleton and Dunn venture beyond the plain language of the EAJA statute to consider underlying interests in
We read the plain language of the EAJA statute to require not only that an application be filed by the thirty-day deadline, but that it contain averments addressing each of the four other requirements enumerated in the statute.
In Bazalo, we held that the applicant satisfied the jurisdictional eligibility requirement by asserting he was a prevailing “party” entitled to an award in his EAJA application. 150 F.3d at 1383. Because his initial application satisfied the jurisdictional eligibility requirement, as well as all of the other jurisdictional requirements, this court gave Bazalo some latitude to supplement his application to flesh out the missing details of his net worth. Id. at 1383-84. Citing Dunn, the opinion in Bazalo stated that “[w]e 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.” Id. at 1383.
In contrast to Dunn and Singleton, this court, in Bazalo, recognized that the EAJA statute contains “jurisdictional prerequisites” (plural). Id. at 1384 (emphasis added). We initially distinguished a “requirement” of the EAJA from a “jurisdictional prerequisite,” and quoted Dunn‘s explication of the finality and reliance justifications for making such a distinction. Id. at 1383. However, we stopped short of adopting the holding of Dunn, instead both recognizing and analyzing as “jurisdictional requirements” and “jurisdictional prerequisites” each of the provisions of the fee application specified by the plain language of the EAJA and at the same time according fee applicants some latitudе to provide details where a required averment may be less than fully explicated. Id. at 1383-84.
After enumerating the contents of Bazalo‘s EAJA application, including each of the four requirements of
Although this court has characterized the four requirements of an EAJA application to be jurisdictional, we have recognized that details relating to the requirements may be “fleshed out” after the thirty-day deadline in certain circumstances. In this case, Scarborough argues that the fourth requirement itself — the allegation of a lack оf substantial justification — should be considered separately from the other requirements and need not be alleged at all before the deadline. In accordance with the Supreme Court‘s remand of the present case for further review in light of Edelman, we reconsider whether the failure to comply with the requirement to allege lack of substantial justification within the thirty-day deadline is fatal to an EAJA application, or whether the applicant is permitted to supplement his application to include the missing allegation after the deadline and to have it relate back to the timеly filed, but incomplete, original application.
The Edelman case did not involve an EAJA application, but rather a claim under Title VII of the Civil Rights Act of 1964,
In reversing the decision of the district and appellate courts, the Supreme Court reasoned that the purposes behind the verification requirement and the timeliness requirement were quite different. 122 S.Ct. at 1149. The Court held that while the timeliness requirement encourages prompt filing of claims and speedy resolution of discriminatory behavior, the verification requirement protects employers from frivolous claims. Id. The Court analogized the situation in the Edelman case to Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001), in which the Supreme Court held that “while the timing and content requirеments [for filing a notice of appeal under Rule 3 of the Federal Rules of Appellate Procedure] were ‘jurisdictional in nature,’ nothing prevented later cure of the [Rule 11 of the Federal Rules of Civil Procedure] signature defect.” Edelman, 122 S.Ct. at 1151 (citing Becker, 532 U.S. at 765, 121 S.Ct. 1801).
The present case is distinguishable from Edelman and Becker. First, the statute at issue in Edelman is “a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” Id. at 1150 (quoting EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988)). Edelman‘s permissive relation back of the verification requirement “ensures that the lay complainant, who may not know enough to verify on filing, will not risk forfeiting his rights inadvertently.” Id.1 The EAJA statute, however, is directed to attorneys seeking attorney fees. As such, this paternalistic protection is not required.
Second, the two requirements in Edelman — namely the timely filing of the charge and the verification — are contained in separate statutory provisions held not interdependent.
Third, the purpose of the fourth requirement оf an EAJA application is not different than the other three requirements, unlike the verification of Edelman or the signature of Becker. The allegation that the government was not substantially justified is not simply a tool to weed out frivolous claims, but rather is one portion of the basis of the award itself. See, e.g., Comm‘r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 165, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (“The ‘substantial justification’ requirement of the EAJA establishes a clear threshold for determining a prevailing party‘s eligibility for fees, one that properly focuses on the
The legislative history tags the lack of substantial justification allegation as a burden-shifting statute. S.Rep. No. 96-974, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4726, 4989 (stating that the allegation is intended “to place the burden on the government to make a positive showing that its position and actions during the course of the proceedings were substantially justified“). This, however, is belied by the plain language of the EAJA statute itself:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
For the reasons set forth above, we conclude that the allegation of a lack of substantial justification is a jurisdictional requirement of the EAJA statute that must be met within the specified thirty-day time period. To allow otherwise is contrary to the strict construction of the language of the statute required in cases of waiver of sovereign immunity. The averment is a substantive requirement that is not so easily divorced from the remaining requirements and accompanying thirty-day deadline, both set forth in the same statutory provision. Moreover the purpose of the allegation is the samе as for the other three requirements — to provide a threshold for fee determination. For these reasons, the allegation of a lack of substantial justification is more akin to insufficient content than the lacking signature in Becker. Edelman, 122 S.Ct. at 1151 (“We held that while the timing and content requirements for the notice of appeal were ‘jurisdictional in nature,’ nothing prevented later cure of the signature defect.” (citing Becker, 532 U.S. at 765, 121 S.Ct. 1801) (emphasis added)).
Because the allegation of no substantial justification is a jurisdictional requirement, the remaining question is whether the failure to so allege is fatal to an EAJA application. In this respect, this case is analogous to Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), and Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). In Torres, a notice of appeal in an employment discrimination suit omitted the petitioner‘s name due to a clerical error. The case was remanded by the Ninth Circuit back to the district court, where Oakland moved for partial summary judgment on the ground that the prior judgment was final as to the petitioner by virtue of his failure to appeal. The district court granted the motion and the appeals court affirmed. The Supreme Court granted certiorari to determine whether failure to file a notice of appeal in aсcordance with
Similarly, Scarborough‘s failure to allege a lack of substantial justification is not “an excusable informality” nor is it “imperfect but substantial compliance.” Scarborough‘s application was instead completely devoid of a jurisdictional requirement. The required allegation of lack of substantial justification calls for substantive content, similar to the content requirements contemplated in Rule 3(c). This notion is further supported by the Smith case.
In Smith, the named appellant appealed a district court‘s dismissal of his action against Barry under
The present case is not an instance of substantial compliance with a technical requirement, but rather, absolute noncompliance with a jurisdictional threshold. Noncompliance is fatal. Scarborough is not seeking to merely “flesh out the details” of an otherwise complete application. Rather, he is seeking to add an entirely missing averment that is a jurisdictional requirement. Because he sought to add this averment after the expiration of the thirty-day deadline, his attempt to remedy the jurisdictional defect was untimely.
CONCLUSION
For the foregoing reasons, the dismissal by the Veterans’ Court of Scarborough‘s EAJA application for attorney fees and expenses for lack of subject matter jurisdiction is
AFFIRMED.
MAYER, Chief Judge, dissenting.
Because I believe that: (1) Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), implies that failure to timely include a simple allegation that does not prejudice the opposing party, may relate back to a timely filed application; (2) the court unnecessarily narrows the waiver that Congress intended because the statutory language of the Equal Access to Justice Act (“EAJA“) does not mandate strict compliance or foreclose supplementation; and (3) Bazalo v. West, 150 F.3d 1380 (Fed.Cir.1998), controls the outcome of this case, I dissent.
The “no substantial justification” allegation in the EAJA application is akin to the verification requirement of Edelman and the signature requirement of Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001). The Court noted in those cases, respectively, that both the verification and signature requirements are aimed at stemming irresponsible litigation. Similarly, the no substantial justification allegation of EAJA serves a public policy function; it is a burden-shifting mechanism to offset deterrents to contesting government action. The legislative history pointedly reveals that this simple allegation was included “to place the burden on the government to make a positive showing that its position and actions during the course of the proceedings were substantially justified....” S.Rep. No. 96-974, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4726, 4992. Congress recognized that this standard struck a balance between the executive branch‘s duty to observe that the laws are faithfully executed and the public interest in encouraging parties to vindicate their rights. Id. at 4989. The legislative history further explains that the standard was implemented because it is easier for the government, controller of the evidence, to establish the reasonableness of its action versus a private party. Id. Moreover, failure to include the simple allegation within the thirty-day time period does not prejudice the government‘s response to the application. And the applicant need not marshal the facts to determine if the government‘s position was substantially justified. Comm‘r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 160, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (“Moreover, the 1985 amendment to
The objective of EAJA is to eliminate the financial disincentive for those who would defend against unjustified governmental action and thereby deter it. Jean, 496 U.S. at 163, 110 S.Ct. 2316. In light of this and Bazalo, Becker, and Edelman, it is apparent that Congress did not intend the EAJA application process to be an additional deterrent to the vindication of rights because of a missing averment.
EAJA is a waiver of sovereign immunity and therefore must be strictly construed. But we must take care not to “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). By holding that failure to include the “no substantiаl justification” allegation within the thirty-day filing requirement is an incurable jurisdictional requirement, the court indulges an “unduly restrictive” reading of the congressional waiver of sovereign immunity, Bowen v. City of New York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), rather than “a realistic assessment of legislative intent,” Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In my view this is substantially the same case as Bazalo, which I would follow.