Bly v. Shulkin

In November 2014, the Board of Veterans’ Appeals denied Bly’s request for service connection for bilateral hearing loss. Bly appealed to the Veterans Court. After his opening brief was filed, Bly and the government filed a joint motion for partial remand. The Veterans Court granted the motion, citing to Rule 41(b) of the Veterans Court’s Rules of Practice and Procedure, and noting that “this order is the mandate of the Court.” Bly applied for attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, 31 days later. Remand orders from the Veterans Court may entitle veterans to EAJA fees and expenses. Under 28 U.S.C. 2412(d)(1)(B), such EAJA applications must be made “within thirty days of final judgment in the action.” The Veterans Court reasoned that its judgment became final immediately because the order remanded the case on consent and stated that it was the mandate of the court. The Federal Circuit vacated the denial of his application, reasoning that the consent judgment at issue became “not appealable” 60 days after the entry of the remand order under 38 U.S.C. 7292(a). View "Bly v. Shulkin" on Justia Law