Darald Bly sought attorney fees under the Equal Access to Justice Act after the Veterans Court granted a joint motion for partial remand to the Board and stated that its remand order constituted the court’s mandate. The Veterans Court denied the fee request as untimely under its own rules, reasoning that the judgment became final immediately upon issuance of the remand order. The Federal Circuit reversed.

The Federal Circuit held that EAJA’s statutory definition of “final judgment” controls, not the Veterans Court’s mandate rules. Under 28 U.S.C. § 2412(d)(2)(G), a judgment is final only when it is “final and not appealable.” Because Veterans Court judgments are ordinarily appealable for 60 days, the remand order did not become “not appealable” until that appeal period expired. The court rejected the government’s argument that limited appealability of a consent remand made the order effectively final on the date it issued, and it also rejected the idea that the remand order was an “order of settlement.” The court further noted that prompt remand to the Board and EAJA timing can coexist, because the Veterans Court may issue its mandate immediately while EAJA finality still runs from the statutory appeal period.

The result was a vacatur and remand for consideration of the EAJA application on the merits. The case is important because it prevents local court-rule finality concepts from shortening the federal statutory EAJA filing window and clarifies that practitioners may file EAJA applications after a Veterans Court remand so long as the filing falls within the statutory timing rules.

For EAJA fee applications, final judgment means a judgment that is final and not appealable under the statute; a Veterans Court consent remand is not final for EAJA purposes until the time for appeal expires, regardless of the court’s immediate mandate practice.

Do not let Veterans Court mandate language control EAJA timing. If the judgment can still be appealed for 60 days, the EAJA clock generally runs from the end of that appeal period, not from the remand order date.

This decision gives veterans and fee counsel a clear, statute-based rule for EAJA deadlines after Veterans Court remands. It also limits the ability of local rules or mandate practice to create hidden timeliness traps.

Inadequate Reasons or Bases [Procedural Error]

A veteran’s case is remanded from the Veterans Court on joint motion, and the order says it constitutes the mandate. Counsel files an EAJA application 40 days later. Under Bly, the application is timely if it was filed within 30 days after the judgment became final and not appealable under the statute.

Use Bly to defend EAJA timeliness whenever VA or the Veterans Court counts from the remand order date instead of the statutory final-judgment date. It is especially useful after consent remands and other orders where mandate issues immediately.

Impresa Construzioni Geom. Domenico Garufi v. United States, Brewer v. Am. Battle Monuments Comm’n, Wagner v. Shinseki