holding that at least jurisdictional element of statement that appellant's net worth does not exceed $2,000,000 is subsumed in appellant's averment of eligibility for EAJA award
How later courts described this case
- holding that at least jurisdictional element of statement that appellant's net worth does not exceed $2,000,000 is subsumed in appellant's averment of eligibility for EAJA award
Written by the judges who cited it.
The opinion
ORDER
PER CURIAM.
On November 20, 1996, counsel for the appellant filed a motion for reconsideration of the Court’s August 16, 1996, opinion dismissing the application for fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 . Bazalo v. Brown, 9 Vet.App. 304 (1996) (en banc). Counsel also filed a motion for leave to file the motion for reconsideration out of time.
The application for fees complied with neither the requirement of 28 U.S.C. § 2412 (d)(1)(B) nor the Court’s former Rule 39. As to the former, the appellant made no statement that his “net worth at the time the appeal was filed did not exceed $2 million” nor referenced the filing of a motion to waive filing fees under Rule 24 of the Court’s Rules of Practice and Procedure. Bazalo, 9 Vet.App. at 309 ; Owens v. Brown, 10 Vet.App. 65 (1997). As to the latter, the appellant made no statement that “he is eligible to receive an award.” U.S. Vet.App. R. 39(b)(1). His statement that he was “entitled to receive an award as shown by this Court’s September 29, 1994, Order vacating the Board of Veterans’ Appeals’ (BVA) March 4, 1993, decision *155 in the matter and remanding the case to the BVA,” was not related to the question of the appellant’s net worth; rather, it was related to the Court’s action in remanding the case to the BVA. The application was, therefore, jurisdictionally defective. It is
ORDERED that the motion for leave to file the motion for reconsideration out-of-time is granted. Upon consideration of the foregoing, the pleadings of the parties, and the record on appeal, it is further
ORDERED that the motion for reconsideration of the Court’s August 16, 1996, opinion is DENIED.