The opinion
KRAMER, Judge,
dissenting:
I would hold that the appellant’s EAJA application is timely filed. As Rule 25(a) permits “[any] paper ... permitted to be filed in this Court ... except a brief [to] be filed by facsimile (fax),” I agree with the majority insofar as it intimates that Rule 25(b) is applicable to an EAJA application. Rule 25(b) provides that “a paper received by the Clerk [by facsimile] before 7:00 a.m. on a business day is considered received on the preceding business day.” Does the phrase “before 7:00 a.m. on a business day” apply only when the fax is received on a business day, or is any receipt prior to the time specified in the rule, even if on a weekend, sufficient?
The majority suggests that the former reading is mandated because such an interpretation “keeps Rule 25 in harmony with the EAJA statute and case law,” i.e., it requires that an EAJA application, in conformity with Rule 39(a), be received by the Court within 30 days of final judgment. Unfortunately, the majority’s interpretation will not always accomplish that result. If the appellant’s application, rather than having been received on Sunday, a non-business day, had been received between 12:00 a.m. and 7:00 a.m. on Monday, a business day, the majority’s rule would revert the application’s receipt to the preceding Friday, i.e. the preceding business day, thus extending the 30 day receipt period. Another example to help illustrate the majority’s interpretation is that if the appellant’s fax had been received, hypothetically, at 6:00 a.m. on a Friday, the thirty-first day after final judgment, it, too, by operation of Rule 25(b), would have to be deemed timely received as of Thursday.
Consequently, there is no basis for the majority’s conclusion that its interpretation of Rule 25(b) precludes an extension of the EAJA filing period. Quite to the contrary, it mandates, after the 30 day receipt period expires, extension where an appellant’s application is received between 12:00 a.m. and 7:00 a.m. on the next business day, but precludes extension where an application is received on a weekend, thus providing the anomalous result of excluding the Sunday receipt in this ease, but allowing it if the receipt had occurred even later,- on the next day, between 12:00 a.m. and 7:00 a.m. Given *445 that incongruity, the majority’s interpretation cannot stand.
Furthermore, there is a second reason for holding that the appellant’s application is timely. Because of the placement of the phrase “before 7:00 a.m.” as the triggering mechanism for operation of Rule 25(b)(1) (as opposed to the phrase “on a business day”) (emphasis added), it should be read so as to backdate the receipt of an application received before 7:00 a.m. on a business day. It is not written so as to require receipt on the business day — only before a certain time on that day. Thus, the rule as written does apply, albeit unwisely, to' the appellant’s application. The remedy is obvious — a change in the Rule. I respectfully dissent.