Segundo Mariano v. Anthony J. Principi , 2004 U.S. Vet. App. LEXIS 530 ( 2004 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 01-467(E)
SEGUNDO MARIANO , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.
ORDER
On October 22, 2003, the Court issued its opinion in the instant appeal. Mariano v. Principi,
17 Vet.App. 305 (2003). In accordance with its opinion, the Court entered its judgment and issued
its mandate on November 4, 2003, which was 10 days after the date on which the opinion issued.
Id. at 318; see U.S. VET . APP . R. 2 (suspension of rules), 35 (motion for reconsideration), 36 (entry
of judgment), 41(a) (issuance of mandate). On January 22, 2004, the Court received the appellant's
application for fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412(d). On January 29, 2004, the Clerk of the Court ordered the appellant to show cause why the
application should not be dismissed as untimely. The appellant filed his response on February 6,
2004.
Upon review of the record of proceedings in this appeal, the Court finds that the appellant's
EAJA application was timely submitted to the Court on January 22, 2004. The Court's November 4,
2003, judgment became final on January 5, 2004, that is, 60 days after the entry of judgment, see
38 U.S.C. § 7291(a); FED . R. APP . P. 4(a)(1)(B); and the deadline for filing an EAJA application was
February 4, 2004, that is, 30 days after the Court's judgment became final, see 28 U.S.C.
§ 2412(d)(1)(B). See Strouth v. Brown, 8 Vet.App. 502, 504 (1996) (per curiam order) (noting that
"[u]nless there is an order on consent remanding a case under U.S. VET . APP . R. 41(b), the 30-day
period to file an EAJA application with the Court begins to run when the judgment becomes final
and not when the Court issues its mandate").
Upon consideration of the foregoing, it is
ORDERED that the appellant's January 22, 2004, EAJA application is accepted for filing as
of the date of its receipt by the Court. It is further
ORDERED that, not later than 30 days after the date of this order, the Secretary file a
response to the appellant's EAJA application. See U.S. VET . APP . R. 39(b). The appellant may
thereafter file a reply as provided for in the Court's Rules of Practice and Procedure. See U.S. VET .
APP . R. 39(c). It is further
ORDERED that the EAJA application is returned to the single judge for disposition.
DATED: August 13, 2004 PER CURIAM.
2