Before Rich, Newman, and Schall, Circuit Judges.
The opinion of the court was delivered by: Rich, Circuit Judge.
Appealed from: United States Court of Veterans Appeals
Opinion for the court filed by Circuit Judge RICH. Dissenting opinion filed by Circuit Judge SCHALL.
Charles W. Bazalo (Bazalo) appeals from a dismissal by the United States Court of Veterans Appeals (Court of Veterans Appeals) for lack of subject matter jurisdiction over his application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1994). We reverse and remand.
After remand of Bazalo's complaint, on which his EAJA application is based, to the Board of Veterans' Appeals, Bazalo filed a timely application for attorney fees and expenses under EAJA. The Secretary of Veterans Affairs (Secretary) filed a motion to dismiss Bazalo's EAJA application for lack of subject matter jurisdiction, however, because he had not alleged that he was an eligible party or that his net worth did not exceed $2,000,000.
The pertinent section of the EAJA reads:
A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.
28 U.S.C. § 2412(d)(1)(B). A "party" is defined, in part, as "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed . . . ." 28 U.S.C. § 2412(d)(2)(B).
The Court of Veterans Appeals promulgated Rule 39 to set forth the requirements of an EAJA application under the Court's Rules of Practice and Procedure. Rule 39 required that the applicant provide a statement that he is a prevailing party and is eligible to receive an award; that he identify the specific positions of the Secretary that were not substantially justified; and that he provide an itemized statement from his attorney as to each type of service rendered. See U.S. Vet. App. R. 39.
In construing the EAJA statute, the Court of Veterans Appeals held that the use of mandatory language such as "shall" and "must" in the EAJA statute and the necessity of strict construction of the United States' waiver of sovereign immunity established that each of the following four requirements are jurisdictional and must be met within the thirty-day filing period:
(1) a showing that the appellant is a prevailing party;
(2) a showing that the appellant is eligible ...