UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-1782

SIDNEY L. THAYER, APPELLANT,

 V.

HERSHEL W. GOBER,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and HOLDAWAY and STEINBERG, Judges.

O R D E R

The appellant appealed from a May 1998 Board of Veterans' Appeals (Board) decision that

denied his claim for service connection for schizophrenia. On February 15, 2000, the Court

dismissed the appeal on the basis that, while his appeal was pending before the Court, a VA regional

office had granted the appellant service connection forschizophrenia and that there was thus no case

or controversy remaining. The appellant, through counsel, subsequently filed an application for

attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

Prior to filing a response to the EAJA application, the Secretary filed a motion to dismiss, asserting

that the Court lacked jurisdiction over the EAJA application. On August 10, 2000, the Court, citing

Hudson v. West, 13 Vet.App. 470 (2000), Kawad v. West, 12 Vet.App. 61 (1998), and Heath v. West,

11 Vet.App. 400 (1998), denied the EAJA application, stating that because the underlying appeal

had been dismissed for lack of jurisdiction, denial of the EAJA application was required under the

Court's precedents. 

On August 29, 2000, the appellant filed a motion for reconsideration of the Court's

August 10, 2000, order, or in the alternative for a panel decision. He argues that Heath and Hudson,

both supra, are inapposite because they require dismissal of the EAJA application only if the Court

never had jurisdiction over the underlying appeal, whereas in the instant case the Court did have

jurisdiction over the appellant's appeal when he filed a Notice of Appeal from the May 1998 Board

decision. 

The EAJA statute provides that:

[A] court shall award to a prevailing party other than the United States fees and other

expenses . . . incurred by that party in any civil action . . . , brought by or against the

United States in any court having jurisdiction of that action, unless the court finds

that the position of the United States was substantially justified or that other special

circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added). In Hudson, the Court addressed that statutory
2

provision and held that "the Court must possess actual jurisdiction over [the] appeal from the Board

in order to award EAJA fees for the appeal." Hudson, 13 Vet.App. at 472; see also Heath,

11 Vet.App. at 404 ("because the Court lacked jurisdiction to award the relief requested in the

petitioner's petition, it also lacks jurisdiction to consider an EAJA application filed in connection

with that petition"). However, the appellant's motion brings to light that the Court has not clarified

whether, in order to have jurisdiction to award EAJA fees, the Court must possess "actual

jurisdiction" at the time of the merits disposition or whether it is sufficient if the Court had

jurisdiction at any time during the pendency of the appeal. In order to provide such clarification, the

Court will grant the appellant's motion for a panel decision. Before rendering its decision, the Court

deems it appropriate to obtain from the Secretary a response addressing the issues raised in the

appellant's August 29, 2000, motion. 

Upon consideration of the foregoing, it is

ORDERED that the Court's August 10, 2000, order is withdrawn. It is further

ORDERED that the Secretary, within 30 days after the date of this order, file with the Court

and serve on the appellant a response addressing the issues raised in the appellant's August 29, 2000,

motion. It is further

ORDERED that, within 14 days after service of the Secretary's response, the appellant may

file a reply to that response.

DATED: November 8, 2000 PER CURIAM.