Bly v. Shulkin, 883 F.3d 1374 (Mar. 2, 2018)
HELD: Unless a Court order specifically prohibits an appeal, an order granting the parties’ motion for remand will become final and “‘not appealable’ 60 days after the entry of the remand order.”
SUMMARY: The Equal Access to Justice Act (EAJA) requires an application for attorney fees to be filed “within 30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). Mr. Bly’s attorney filed his EAJA application with the CAVC 31 days after the Court issued its order granting the parties’ joint motion for remand. The Court, relying on three of its own rules of practice and procedure, denied the application because it was one day late. These rules state that (1) an EAJA application must be made “not later than 30 days after the Court’s judgment becomes final”; (2) when the Court remands a case on the parties’ consent, judgment is effective the date of the Court order when that order states that it constitutes the mandate of the Court; (3) mandate is when the Court’s judgment becomes final; and (4) mandate is generally 60 days after judgment, unless it is “part of an order on consent … remanding a case” or “the Court directs otherwise.” See Rules 39(a), 36(b)(1)(B)(i), 41(a) and (b).
The Federal Circuit reversed the CAVC’s decision based on the EAJA’s definition of “final judgment” as a “judgment that is final and not appealable, and includes an order of settlement.” Mr. Bly argued that his EAJA application was timely because the “Court’s judgment was not yet ‘final and not appealable’ until 60 days after the date of the remand order.
The Federal Circuit noted that the courts of appeals have taken two different approaches to the issue of finality for EAJA purposes. Under the “uniform” approach, the time to file an EAJA application “would run from the expiration of the time for appeal, without consideration of whether the particular final judgment would have or could have been appealed.” The “functional” approach, on the other hand, requires a “case by case exploration of whether an appeal could have been taken by either party.” The Federal Circuit had previously “adopted the uniform rule for voluntary dismissals, ‘at least where the order of dismissal does not specifically prohibit appeal’” – and saw no reason to depart from that approach in the context of “consent judgments,” as in this case. The Court thus held that the “consent judgment here became ‘not appealable’ 60 days after the entry of the remand order” – and, therefore, Mr. Bly’s EAJA application was timely.
The Secretary had also argued that the CAVC order granting the parties’ joint motion for remand was “an order of settlement” and, therefore, a final judgment under the EAJA. The Federal Circuit rejected this argument because the order granted the motion to remand did not resolve the underlying service-connection dispute. The appeal would go back to the Board – and may even return to the Court – so the Federal Circuit did not this fit within the plain meaning of “settlement.” The Federal Circuit remanded this matter to the CAVC to consider the merits of the EAJA application.