Scarborough v. Principi

• Citation: 273 F.3d 1087
• Decision Date: 10 December 2001
• Docket Number: No. 00-7172,00-7172
• Parties: (Fed. Cir. 2001) RANDALL C. SCARBOROUGH, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1087

273 F.3d 1087 (Fed. Cir. 2001)

RANDALL C. SCARBOROUGH, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 00-7172

United States Court of Appeals for the Federal Circuit

December 10, 2001

Appealed from: United States Court of Appeals for Veterans Claims

Peter J. Sarda, Wallace, Creech & Sarda, L.L.P., of Raleigh, North Carolina, argued for claimant-appellant.

Joseph Trautwein, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and Michelle Doses Bernstein, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, RADER, and LINN, Circuit Judges.

LINN, Circuit Judge.

Randall C. Scarborough appeals from a dismissal by the United States Court of Appeals for Veterans Claims ("Court of Veterans Claims") 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 hold that an application for attorney fees and expenses that does not include, prior to expiration of the thirty-day deadline, an allegation that the position of the United States was "not substantially justified" fails to meet the jurisdictional prerequisites of the EAJA statute. Because Scarborough's initial application failed to comply with the statute, and the Court of Veterans Claims correctly determined that it was without jurisdiction to consider his application, this court affirms.

BACKGROUND

Upon prevailing in the underlying litigation, Scarborough submitted prematurely (before the entry of the mandate in his case) an application for attorney fees and expenses under the EAJA, 28 U.S.C. 2412(d). On October 4, 1999, following the issuance of the mandate, the clerk filed Scarborough's EAJA application which stated that: (1) he was the prevailing party pursuant to the July 1999 remand order; (2) his net worth did not exceed the $2,000,000.00 limit for filing under the EAJA; (3) his attorney had represented him in the matter since August 1998; and (4) the attorney had incurred fees and expenses during his representation of the appellant, which were enumerated in an attachment to the application. 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 the jurisdictional requirements under the EAJA statute because he did not allege in his EAJA application that the Governments position in the underlying litigation lacked substantial justification. Scarborough filed an amendment to his EAJA application on December 9, 1999. In that amendment he alleged that the Government's position lacked substantial justification.

The Court of Veterans Claims examined the EAJA statute and held that it contains several jurisdictional requirements 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 28 U.S.C. 2412(d)(1)(B) (1994).

The Court of Veterans Claims then dismissed Scarborough's EAJA application for lack of subject matter jurisdiction because it found that Scarborough did not allege, within the thirty-day filing period, that the Governments position was not substantially justified. Id. Scarborough timely appealed to this court, and we have jurisdiction over the appeal pursuant to 38 U.S.C. 7292(c).

DISCUSSION

A. Standard of Review

In reviewing decisions of the Court of Veterans Claims, this court "shall decide all relevant questions of law, including interpreting . . . statutory provisions." 38 U.S.C. 7292(d)(1) (Supp. V 1999). This court reviews an interpretation of statutory provisions by the Court of Veterans Claims without deference. Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir. 1994).

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 (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 (1992). Once the government provides the waiver, "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941).

In this case, the terms of the waiver are contained in the EAJA statute. That statute specifies that an applicant for an award of fees "shall," within thirty days of final judgment in the action, submit an application:

(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."

28 U.S.C. 2412(d)(1)(B) (1994); Singleton v. Apfel, 231 F.3d 853, 857 (11th Cir. 2000). The specific provision of the EAJA at the heart of this case states that,

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 . . . . The party shall also allege that the position of the United States was not substantially justified.

28 U.S.C. 2412(d)(1)(B) (1994) (emphasis added).

In construing a statute, "the 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 (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 (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 (1990).

The language of the EAJA statute is plain and unambiguous for the purposes of this appeal. A party seeking an award of fees "shall" submit an application including each of the four requirements enumerated, within the thirty-day time limit. 28 U.S.C. 2412 (d)(1)(B) (1994). The same mandatory language ("shall") is used with respect to the thirty-day time limit as with the other four requirements, and all four are stated as parts of the necessary application.

This court and five other U.S. Courts of Appeals have characterized the thirty-day time limit for submitting a fee application under the EAJA as jurisdictional in nature. See Bazalo, 150 F.3d at 1383; J.M.T. Mach Co. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987). See also Yang v. Shalala, 22 F.3d 213, 215 n.4 (9th Cir. 1994); Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993); Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir. 1991); Welter v. Sullivan, 941 F.2d 674, 675 (8th Cir. 1991); Peters v. Sec'y of HHS, 934 F.2d 693, 694 (6th Cir. 1991).

The issue in this appeal is whether the other four requirements enumerated in the EAJA statute are likewise jurisdictional. This issue was addressed in a number of cases decided by other Courts of Appeals and by this court in Bazalo. The Third Circuit in Dunn found that a failure to itemize the amount sought under the EAJA may be corrected after the thirty-day time limit if no prejudice to the Government arises. Dunn v. United States, 775 F.2d 99, 103 (3d Cir. 1985). In a class action suit against several federal agencies involving radiation contamination by a uranium processing site, Dunn and the other named plaintiffs submitted an EAJA application that made the proper allegations that plaintiffs were prevailing parties and were eligible to receive a fee award, and that the position of the United States was not substantially justified. Id. at 100-01. However, the application failed to state the amount sought or to include an itemized statement of the actual time expended and the rate at which the expenses were computed. Id. at 101. The court held that as long as the EAJA application was filed within the thirty-day time limit, the application may be supplemented or corrected after the thirty-day period, provided that the Government was not prejudiced by the defect. Id. at 104.

The majority opinion in Dunn in effect cleaved 2412(d)(1)(B) into two distinct components: a filing deadline and a standard for pleading:

Requiring the filing of a fee claim (or any other) with the court . . . 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 . . .

Dunn, 775 F.2d at 103-04.

The 11th 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 Security Administration ("SSA") involving payment of retroactive disability benefits in "random" fashion, resulting in the loss of Medicaid benefits for plaintiffs in...