UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-1590(E)

RANDALL C. SCARBOROUGH, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before IVERS, Chief Judge, STEINBERG and GREENE, Judges.

O R D E R

On October 4, 1999, the appellant filed, through counsel, an application for an award of

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

On December 9, 1999, the Court received from the appellant an amendment to the initial EAJA

application. On June 14, 2000, a panel of the Court dismissed the EAJA application for lack of

jurisdiction. Scarborough v. West, 13 Vet.App. 530 (2000). After the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) affirmed the dismissal, the U.S. Supreme Court reversed the Federal

Circuit's judgment. Scarborough v. Principi, 319 F.3d 1346 (Fed. Cir. 2003), rev'd, __ U.S. __,

124 S. Ct. 1856 (May 3, 2004). In an order dated June 15, 2004, the Federal Circuit recalled its

mandate, reinstated the appeal, and remanded the case to this Court with instructions to consider the

merits of the EAJA application.

On June 10, 2004, the appellant, though counsel, filed a "supplemental application for

attorney's fees and expenses under the [EAJA] and this Court's Rule 39(d)(3)". On September 13,

2004, the Court directed the Secretary to file, within 30 days thereafter, a response to the

supplemental EAJA application. The Secretary filed on September 30, 2004, a motion for

clarification of the Court's orderin light ofRule 39(d) of this Court's Rules of Practice and Procedure

(Rules). Motion (Mot.) at 3 (citing to U.S. VET. APP.R. 39(d)(3) and (5)). The Secretary notes that

the appellant's initial EAJA application has not been granted in whole or in part and that a response

by the Secretary to any matters related to the "fees for fees" litigation that is the subject of the

supplemental application is, at this juncture, premature. Mot. at 4-5. The Secretary notes further that

he has not yet been presented with the opportunity, among other things, to address the allegation that

his position during the underlying merits phase was not substantially justified. Id. The Secretary

essentially requests the Court to resolve the initial application prior to considering the fees claimed

to have been incurred during the "fees for fees" litigation. Id. at 5.

In an opposition filed on October 4, 2004, the appellant contends that the supplemental

application incorporates the initial application and provides the best means for concluding this fee

litigation "comprehensively and expeditiously". Opposition (Opp.) at 1. The appellant argues that
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Rule 39 requires that "a supplemental fee application include only those fees that have not yet been

incurred at the time the prior application was filed" but that "all other fees, including all 'fees [for]

fees', must be included in the initial application." Opp. at 4-5 (citing U.S. VET. APP. R. 39(d) and

(a), respectively). The appellant argues that his supplemental application complies with Rule 39 "by

including all fees, including all 'fees [for] fees,' incurred prior to [the] filing [of the supplemental

application] on June 10, 2004." Id. at 5. 

On October 1, 2004, the Secretary also filed an unopposed motion for an extension of time

to file a response until November 13, 2004. The Secretary states that, given the "complicated nature

of the matters presented by [the a]ppellant's supplemental application for fees, the Secretary must

conduct further research and anticipates that further time will be needed beyond the Court's deadline

to properly prepare a response." Mot. at 1. The Court notes that the Secretary's motion for an

extension, filed one day after the motion for clarification, does not mention the pending motion for

clarification. 

The Court will grant the Secretary's motions for clarification and for an extension of time to

file his response. The Court notes that both parties make good arguments by analogy to the

provisions of Rule 39. Those provisions, however, are not foursquare applicable. The Court

believes that the Secretary's position is stronger and that the parties should address the initial

application and the supplemental application, separately and sequentially. Cf. Fritz v. Principi,

17 Vet.App. 68, 70-74 (2003) (disposing of first supplemental EAJA application relating to dispute

surrounding fee agreement and returning to screening judge for disposition second supplemental

EAJA application, which related to fees incurred for representation by counsel in connection with

litigation over first supplemental application, including representation at Federal Circuit).

Pursuant to the remand by the Supreme Court and the Federal Circuit, this Court will file

as of the date of this order the amendment to the initial EAJA application, which amendment was

received by the Court on December 9, 1999. The Court will modify its September 13, 2004, order

by directing that the Secretary, not later than November 13, 2004, file a response to the initial EAJA

application, including the December 9, 1999, amendment. See U.S. VET.APP. R. 39. The Court will

defer consideration of the supplemental EAJA application pending disposition of the initial EAJA

application. 

On consideration of the foregoing, it is

ORDERED that the amendment to the initial EAJA application received by the Court on

December 9, 1999, be filed as of the date of this order. It is further 

ORDERED that the Secretary's motions for clarification and for an extension of time are

granted. The Court's order of September 13, 2004, is modified to the extent that the Secretary, not

later than November 13, 2004, will file a response to the initial EAJA application, including the

December 9, 1999, amendment. It is further
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ORDERED that consideration of the appellant's supplemental EAJA application is deferred

pending further order of the Court.

DATED: October 20, 2004 PER CURIAM.