Onstad v. Brown

ORDER PER CURIAM. On July 15, 1996, the Secretary filed a timely motion for reconsideration of this Court’s June 24, 1996, opinion. In the opinion the Court concluded that the appellant had filed a timely application for attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and denied the Secretary’s motion to dismiss. Onstad v. Brown, 9 Vet.App. 189 (1996). Pursuant to the Federal Circuit’s mandate in Onstad v. Brown, 52 F.3d 345 (1995), the appellant’s EAJA application was a case pending on October 29, 1992, the date of enactment of section 506 of the Federal Courts Administration Act of 1992 (FCAA), which authorized this Court to award costs and fees under EAJA. See Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992); Jones v. Brown, 41 F.3d 634 (Fed.Cir.1994). This Court held that the appellant’s EAJA application was timely, although it was not filed within thirty days of a 1991 order granting the parties’ joint motion for remand, because entry of a second judgment in February 1994 conformed to the Court’s practice at that time of issuing two judgments for EAJA purposes. Onstad, 9 Vet.App. at 191; see Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Stillwell v. Brown, 6 Vet.App. 291 (1994), dismissed on other grounds, 46 F.3d 1111 (Fed.Cir.1995). In the motion for reconsideration and full Court review, the Secretary cites Bowers v. Brown, 8 Vet.App. 25 (1995), for the proposition that even where, as here, a joint remand was granted prior to the change in the law brought about by Shalala and Stillwell, an EAJA application would be considered untimely if it was “not filed within the requisite 30 days.” Id. at 28. While this language is correct under current precedent, it does not describe the Court’s practice prior to the issuance of the Stillwell opinion on March 11, 1994. Moreover, because the Bowers holding rested on the Court’s conclusion that EAJA did not apply to that case which was not pending on the date of enactment of the FCAA, the language regarding the timeliness issue is dictum. On consideration of the foregoing, the pleadings of the parties, and the record on appeal, it is by the panel ORDERED that the Secretary’s motion' for reconsideration is DENIED. It is further ORDERED that the Secretary, -within thirty days after the date of this order, shall file a response to the appellant’s EAJA application.