Scarborough v. Principi

Decision Date13 February 2003
Docket NumberNo. 00-7172.,00-7172.
Citation319 F.3d 1346
PartiesRandall C. SCARBOROUGH, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

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 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.

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"), 28 U.S.C. § 2412 (2000). On December 10, 2001, this court entered judgment affirming the dismissal by the Veterans' Court because Scarborough's fee application failed to comply with the jurisdictional prerequisites of the EAJA statute. Scarborough v. Principi, 273 F.3d 1087 (Fed.Cir.2001). Scarborough petitioned for review by the Supreme Court, and on June 17, 2002, the Court granted certiorari, vacated our decision, and remanded the case to this court for consideration in light of Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). Scarborough v. Principi, ___ U.S. ___, 122 S.Ct. 2584, 153 L.Ed.2d 774 (June 17, 2002).

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 subject 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, 28 U.S.C. § 2412(d). On October 4, 1999, following the issuance of the mandate, the clerk of the Veterans' Court filed Scarborough's EAJA application. The application contained a showing that: (1) Scarborough 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, as detailed 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 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 omitted 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 28 U.S.C. § 2412(d)(1)(B) (2000). The Veterans' Court then dismissed Scarborough's EAJA application for lack of subject matter jurisdiction based on Scarborough's failure to allege, within the thirty-day filing period, that the Government's position was not substantially justified. Id. This appeal followed. We have jurisdiction under 38 U.S.C. § 7292.

A. Standard of Review

In reviewing decisions of the Veterans' Court, this court "shall decide all relevant questions of law, including interpreting ... statutory provisions." 38 U.S.C. § 7292(d)(1) (2000); Forshey v. Principi, 284 F.3d 1335, 1351-52 (Fed.Cir.2002) (en banc). This court reviews an interpretation of statutory provisions by the Veterans' Court 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, 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 jurisdiction 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).

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) (2000); 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 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 also allege that the position of the United States was not substantially justified.

28 U.S.C. § 2412(d)(1)(B) (2000).

"[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. 28 U.S.C. § 2412(d)(1)(B). The application must include each of the four requirements set forth in the statute. Id. The same mandatory language ("shall") is used with respect to the thirty-day time limit and the other four requirements that make up the application. Id. 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 fourth requirement of the EAJA statute, that "the party shall also allege that the position of the United States was not substantially justified," must be satisfied within the thirty-day period or may be satisfied at some later time and relate back to the timely filing of an incomplete application. The general question of whether the individual requirements of the EAJA statute are jurisdictional and must be satisfied within the thirty-day period was addressed in a number of cases decided by other Courts of Appeals and by this court in Bazalo. The...

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