UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-0452(E)

ROBERT J. KIDDEY, APPELLANT,

V.

JAMES B. PEAKE, M.D.

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Application for Attorney Fees and Expenses

(Decided June 16, 2008 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the pleading for the appellant.

Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian B.

Rippel, Deputy Assistant General Counsel; and Brian P. Tierney, all of Washington, D.C., were on

the pleading for the appellee.

Before GREENE, Chief Judge, and MOORMAN and LANCE, Judges.

MOORMAN, Judge: Before the Court is Robert J. Kiddey's application for an award of

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

The Secretary argues that the application should be dismissed as untimely because it was filed more

than 30 days after this Court's judgment became final. In reply, the appellant argues that his

application was not untimely. For the reasons that follow, the EAJA application will be dismissed

as untimely filed.

On October 23, 2006, this Court affirmed, in part, and reversed, in part, a December 17,

2003, Board of Veterans' Appeals (Board) decision. See Kiddey v. Nicholson, No. 04-452, 2006 WL

300131 (Vet. App. Oct. 23, 2006). On November 16, 2006, this Court entered judgment. Thereafter,

the appellant appealed this Court's decision to the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit), which granted, in a March 5, 2007, order, the appellant's motion to voluntarily

dismiss his appeal. Kiddey v. Nicholson, 219 Fed. App'x. 984 (Fed. Cir. 2007). The Federal Circuit's
The Court notes that the appellant does not contend that he could have filed a petition for a writ of certiorari

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with the Supreme Court after the Federal Circuit's granted his motion to voluntarily dismiss; therefore, we need not

address that issue further. But see Empire Volkswagen Inc., v. World-Wide Volkswagen Corp., 814 F.2d 90, 94 (2d Cir.

1987) (noting that "[i]t is well settled that a plaintiff who seeks and receives a voluntary dismissal of his action without

prejudice usually 'cannot maintain or prosecute an appeal from the order of dismissal.'" (quoting Mgmt. Investors v.

United Mine Workers of Am., 610 F.2d 441, 444 (6th Cir. 1979)); Impresa Construzioni Geom. Domenico Garufi v.

United States, 73 Fed. Cl. 718, 722 (2006) (acknowledging that "[b]ecause the [plaintiff] voluntarily moved to dismiss,

it could not file a petition for a writ of certiorari in the Supreme Court," and that "[a]ny other interpretation of the effect

of a voluntary dismissal would allow a plaintiff to circumvent the appeals process and seek review directly in the

Supreme Court" (citations omitted)), argued, No. 07-5009 (Fed. Cir. Oct. 3, 2007). 

The Supreme Court has held that the EAJA "provision's 30-day deadline for fee applications and its

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application-content specifications are not properly [termed] 'jurisdictional'" but relate "only to postjudgment proceedings

auxiliary to cases already within the court's adjudicatory authority." Scarborough v. Principi, 541 U.S. 401, 414 (2004).

Nevertheless, the appellant has not argued that the statutory time limit for fee applications under 28 U.S.C. § 2412(d)

is subject to equitable tolling, that an untimely filing may be excused under the Act, or that he is entitled to such equitable

exception.

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docket in this case (No. 07-7101) reflects that the appellant's motion to voluntarilydismiss his appeal

was unopposed by the Secretary. The dismissal order was also issued as the Federal Circuit's

mandate on March 5, 2007. See FED. CIR. R. 41 ("An order dismissing a case on consent . . . will

constitute the mandate."); see also FED.R. APP. P. 41(c) ("The mandate is effective when issued.").

On March 21, 2007, this Court entered mandate on its docket.

The appellant, through counsel, submitted his EAJA application on April 12, 2007, more than

30 days after the March 5, 2007, Federal Circuit order that dismissed the case. The appellant

disputes the Secretary's contention that this Court's judgment became final on March 5, 2007. He

argues that the judgment did not become final until the expiration of the 90-day period for filing a

petition for certiorari to the U.S. Supreme Court, i.e., on June 3, 2007, because the Secretary could

have filed a petition for certiorari at the Supreme Court. Reply at 3-5 (citing 38 U.S.C. § 7291(a)(1) 1

(providing that when a decision of this Court is appealed to and affirmed or dismissed by the Federal

Circuit, this Court's decision becomes final "upon the expiration of the time allowed for filing a

petition for certiorari with the Supreme Court of the United States")). He argues that his EAJA

application was filed not late, but prematurely, because the time for filing his EAJA application did

not run until 30 days after June 3, 2007. Reply at 4-5.

EAJA's 30-day filing period is a statutory requirement. See 28 U.S.C. § 2412(d)(1)(B). The 2

Act requires that applications thereunder be submitted to the Court "within thirty days of final

judgment in the action[.]" 28 U.S.C. § 2412(d)(1)(B). The Act defines "final judgment" as "a
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judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G). Pursuant to Rule 39 of the

Court's Rules of Practice and Procedure, an application for attorney fees and expenses must be filed

with the Clerk of Court "not later than 30 days after the Court's judgment becomes final pursuant to

38 U.S.C. § 7291(a) (which occurs 60 days after entry of judgment under Rule 36) or, consistent with

Rule 41(b), upon the issuance of an order on consent dismissing, terminating, or remanding a case."

U.S. VET. APP.R. 39(a). Our Court's Rule 41(b) is not applicable here because we did not issue the

order on consent. Section 7291(a) contains provisions relating to the date when a Court decision

becomes final, and the appellant specifically relies on section 7291(a)(1) in support of his position

that his application was timely filed. Section 7291(a)(1) provides, in pertinent part:

(a) A decision of [this Court] shall become final upon the expiration of the time

allowed for filing, under section 7292 of this title, a notice of appeal from such

decision, if no such notice is duly filed within such time. If such a notice is filed

within such time, such a decision shall become final– 

(1) upon the expiration of the time allowed for filing a petition for certiorari

with the Supreme Court of the United states, if the decision of the Court of Appeals

for Veterans Claims is affirmed or the appeal is dismissed by the [Federal Circuit]

and no petition for certiorari is duly filed[.]

38 U.S.C. § 7291(a)(1) (emphasis added). 

The appellant argues that because his appeal had been dismissed by the Federal Circuit, this

Court's judgment did not become final under section 7291(a)(1) "until VA's time for appeal [to the

Supreme Court] ran." Reply at 7, 9-10. He contends that the Secretary retained the right to apply

for certiorari "at any time up until the deadline for such an application." Id. at 8. The appellant's

argument is unavailing. The appellant recognizes that the "dismissal" language in section 7291(a)(1)

does not specify whether the dismissal contemplated by the statute is a voluntary dismissal or an

involuntary dismissal.

The Federal Circuit and this Court, however, have recognized the distinction between a

voluntary dismissal and an involuntary dismissal and the significance of that distinction. The

Federal Circuit's rule regarding dismissal of a case based on consent of the parties provides that,

"[a]n order dismissing a case on consent . . . will constitute the mandate." FED. CIR. R. 41. In

determining when a judgment of this Court became final, this Court has previously discussed the

applicability of Federal Circuit Rule 41 in cases where there had been a voluntary termination or
 The March 5, 2007, Federal Circuit dismissal order here granted the appellant's motion to voluntarily dismiss 3

the appeal and directed that "[a]ll sides shall bear their own costs." We do not read this allocation of costs in accordance

with Federal Circuit Rule 42 to be a condition to the dismissal that constitutes prejudice and that would thus render the

dismissal appealable. Federal Circuit Rule 42, Voluntary Dismissal, provides, in pertinent part: "An appeal may be

dismissed on the appellant's motion on terms agreed to by the parties or fixed by the Court." The Practice Note provides

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dismissal of an appeal at the Federal Circuit. Particularly, in Pelea v. Nicholson, this Court relied

on Federal Circuit Rule 41 and section 7291(a)(1) to conclude that, by operation of law, this Court's

judgment became final on December 1, 2005, the date on which the Federal Circuit issued an order

dismissing the appeal on consent of parties, which order was also issued as the Federal Circuit's

mandate, and this Court directed its Clerk of the Court to enter mandate on the docket as of

December 1, 2005. Pelea, 20 Vet.App. 93, 94 n.1 (2006) (per curiam order), aff'd, 497 F.3d 1290

(Fed. Cir. 2007); see also Bowers v. Brown, 8 Vet.App. 25, 27 (1995) (holding that Court order

granting consensual motion for remand pursuant to U.S. VET. APP. R. 41(b) was "final and not

appealable," pursuant to 28 U.S.C. § 2412(d)(2)(G), and dismissing EAJA application where

application was untimely filed). 

The Court holds that, in both situations–where there is (1) a joint motion of the parties to

terminate, dismiss or remand an appeal and (2) an unopposed motion to voluntarily dismiss the

appeal– there is no option for a party to file an appeal (or a petition for a writ of certiorari) because

both parties have already agreed to the judgment. See generally Bowers, 8 Vet.App. at 27 (noting

that this Court's Rule 41(b), which provides that a consent order dismissing a case will constitute the

mandate, does not provide for a period to appeal because a party who has voluntarily dismissed an

appeal may not then file a writ alleging error (citing United States v. Procter & Gamble Co.,

356 U.S. 677, 680 (1958))); see also Empire Volkswagen Inc., v. World-Wide Volkswagen Corp.,

814 F.2d 90, 94 (2d Cir. 1987) (noting that "[i]t is well settled that a plaintiff who seeks and receives

a voluntary dismissal of his action without prejudice usually 'cannot maintain or prosecute an appeal

fromthe order of dismissal'" (quoting Mgmt. Investors v. United Mine Workers of Am., 610 F.2d 441,

444 (6th Cir. 1979))). Regardless of whether the Secretary had actually signed the motion to dismiss

to make it a "joint" motion rather than an "unopposed" motion, the Federal Circuit did not attach any

conditions to the dismissal and, therefore, there is nothing in the Federal Circuit's March 5, 2007,

order to which the Secretary could take exception and could therefore be the subject of a petition for

a writ of certiorari to the Supreme Court. Cf. Druhan v. Am. Mut. Life, 166 F.3d 1324, 1325-26, 3
in pertinent part:

Request to Withdraw Appeal or Petition. An appellant or petitioner may request to withdraw an

appeal or petition at any time before decision, and the request will be granted in all but the most

unusual circumstances. An opposing party is ordinarily expected to consent to the withdrawal on

terms requiring each party to bear its own costs on appeal.

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1325 n.3 (11th Cir. 1999) (dismissing appeal for lack of jurisdiction because there was no case or

controversy where appellant appealed from final judgment entered on her own unopposed motion

for dismissal); see also Briseno v. Ashcroft, 291 F.3d 377, 378-80 (5th Cir. 2002) (per curiam)

(affirming order dismissing request for costs and fees under EAJA because party filed EAJA

application more than 30 days after order granting voluntary dismissal became final and not

appealable; lower court had granted joint motion for voluntary dismissal and had not attached

conditions to dismissal).

TheCourt concludesthat the EAJA application in this case was due on April 4, 2007, 30 days

after the Court's October 23, 2006, judgment became final and not appealable. See 28 U.S.C.

§ 2412(d)(1)(A); 38 U.S.C. § 7291(a). The Court's judgment became final on March 5, 2007, when

the Federal Circuit issued its order dismissing the appeal on consent of the appellant and the

Secretary, and the Secretary had not filed an appeal to the Federal Circuit and could no longer file

such appeal. See Pelea and Bowers, both supra. Similar to an order that terminates, dismisses, or

remands a case based on a joint motion of the parties, the order here that granted the unopposed

motion to withdraw the appeal to the Federal Circuit constituted the mandate of the Federal Circuit

pursuant to the Federal Circuit Rule 41 and is "final and not appealable" under 28 U.S.C.

§ 2412(d)(2)(G). Accordingly, the Court concludes that the appellant's appeal was terminated by the

Federal Circuit's "final and not appealable" order of March 5, 2007. 

Although this Court's docket reflects the entry of mandate on March 21, 2007, the issuance

of mandate is merely a ministerial act reflecting that the Court's judgment has become final. See

Pelea, supra; see also Strouth v. Brown, 8 Vet.App. 502, 504 (1996) (per curiam order) ("The

issuance of mandate is a ministerial function which is irrelevant to the timeliness of the EAJA

application in this case."). Because the EAJA application was due on or before April 4, 2007, and

was filed on April 12, 2007, it was filed outside the 30-day filing period and is untimely.

Accordingly, the appellant's EAJA application is DISMISSED as untimely.