DISMISSED WITHOUT PREJUDICE:  July 19, 2018
CBCA 6165-C(5540)
MARE SOLUTIONS, INC.,
Applicant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
James R. Mall of Meyer, Unkovic & Scott LLP, Pittsburgh, PA, counsel for
Applicant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
Before Board Judges ZISCHKAU, RUSSELL, and O’ROURKE.
O’ROURKE, Board Judge.
Mare Solutions, Inc. (Mare or applicant), submitted its request for costs, fees, and
interest prior to the expiration of the agency’s 120-day appeal period.  Because the
application is premature, we dismiss it without prejudice.
Background
On May 16, 2018, the Board granted Mare’s appeal from a contracting officer’s final
decision which held Mare responsible for the installation of expansion couplings on electrical


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conduit located on the first-floor ceiling of a veterans hospital parking garage.  Mare
Solutions, Inc. v. Department of Veterans Affairs, CBCA 5540, 18-1 BCA ¶ 37,048, at
180,352.  On June 14, 2018, Mare filed an application for costs, fees, and interest pursuant
to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012), for reasonable time and
expenses incurred related to CBCA 5540.  Shortly thereafter, respondent filed a motion to
dismiss the application for lack of jurisdiction.  Mare replied to the motion, requesting that
the Board defer ruling on the application until the decision becomes final or, in the
alternative, to dismiss the application without prejudice so that Mare may refile it once the
application is ripe.
Discussion
As a sovereign, the United States is immune from suit unless it consents to be sued
through an express waiver of sovereign immunity.  United States v. Sherwood, 312 U.S. 584,
586 (1941).  EAJA, which provides for the award of fees and other expenses to a prevailing
party in a suit against the United States, is such a waiver.  5 U.S.C. § 504(a).  The procedure
for recovering these costs is delineated in the statute and the Board’s rules.  Relevant to the
instant motion is the timing for submission of an EAJA application.  Both the Act and Board
Rule 30 provide that a prevailing party seeking costs, fees, and other expenses may submit
an application for the same no later than thirty calendar days after the decision becomes final. 
28 U.S.C. 2412(d)(1)(B); 48 CFR 6101.30(b) (2017).
In this case, assuming that neither party files a timely motion seeking reconsideration,
the Board’s decision becomes final when 120 days have passed (from the date of receipt of
the decision) without an appeal to the United States Court of Appeals for the Federal Circuit. 
Tidewater Contractors, Inc. v. Department of Transportation, CBCA 863-C, 07-2 BCA
¶ 33,705, at 166,885; 41 U.S.C. § 607(g).  Here, only twenty-nine days elapsed between the
date of the Board’s decision and the date of Mare’s EAJA application.  The application is
premature.  Vidal v. USPS, 143 F.3d 1475 (Fed. Cir. 1998); Triad Mechanical, Inc. v.
Department of the Interior, CBCA 3946, 15-1 BCA 35,858, at 175,324. 
In its motion, respondent asks the Board to dismiss the application for lack of
jurisdiction.  Because we find that submitting a premature EAJA application is a procedural
issue, not a jurisdictional one, we dismiss it without prejudice.   United States v. Kwai Fun
Wong, 135 S. Ct. 1625, 1632 (2015); Scarborough v. Principi, 541 U.S. 401, 413-14 (2004)
(citing Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004)); Moustafa A. Mohamed, GSBCA
9547, 89-2 BCA ¶ 21,885, at 110,114-15, aff’d, 925 F.2d 1478 (Fed. Cir. 1991).  “Notably,
even the statutory timing requirements provided in Subsection 2412(d) of EAJA are not
jurisdictional but rather concern the relief a court may award.”  Heger v. United States, 114
Fed. Cl. 204, 208 (2014).  Mare may refile its application at the appropriate time.  

 CBCA 6165-C(5540) 3
Decision
Mare’s application is DISMISSED WITHOUT PREJUDICE.
 Kathleen J. O’Rourke  
KATHLEEN J. O’ROURKE
Board Judge
We concur:
  Jonathan D. Zischkau     Beverly M. Russell       
JONATHAN D. ZISCHKAU BEVERLY M. RUSSELL
Board Judge Board Judge