               UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 19-0678(E)

CHARLES R. COLEY,                                                                  APPELLANT,

             V.

ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS,                                                     APPELLEE.

                                Before PIETSCH, ALLEN, and TOTH, Judges.

                                                      ORDER

        On January 31, 2019, the appellant Charles R. Coley filed through counsel a Notice of
Appeal from an October 25, 2018, Board of Veterans' Appeals decision that denied entitlement to
service connection for hypertension and residuals of a stroke, also claimed as memory loss, both
including as secondary to sleep apnea. The Board also denied entitlement to a total disability rating
based on individual unemployability (TDIU). On August 14, 2019, the parties filed a joint motion
for remand, which the Court granted on August 27, 2019.

        On September 26, 2019, the appellant filed an application for attorney fees and expenses
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). On October 24, 2019, 4 days
before his response was due, the Secretary filed a motion for an extension of time to file his
response as well as a motion to stay proceedings in this matter until the Court ruled on the motion
for an extension of time. Under Rule 26(b) of the Court's Rules of Practice and Procedure, such an
extension of time is available to a party who shows "good cause" for the extension. On October
29, 2019, the appellant filed an opposition to the Secretary's motions, arguing that an extension of
time under our Rule 26(b) subverts the purposes of EAJA, and, because the Secretary had not filed
a timely response to the appellant's EAJA application, the Court was limited to either (1) denying
the EAJA application if we determined the Government's position was substantially justified, or
(2) granting the application because without an opposition the Government had not carried its
burden to show substantial justification.1

        On November 1, 2019, the matter was sent to a panel to address whether the application of
Rule 26(b) to provide the Secretary an extension of time to file his EAJA response based only on
a showing of "good cause" frustrates the purposes of EAJA or is otherwise unlawful. On
November 18, 2019, the Court ordered the parties to submit supplemental briefing on the matter.
After supplemental briefing was completed, on January 15, 2020, the Court granted Kala Barber's
motion for leave to file an amicus brief in this matter and her brief was accepted as filed that same
day.2


1
    See Appellant's Oct. 29, 2019, Opposition at 1.
2
    Judge Pietsch dissented from both that order and the supplemental briefing order.
                                   I. LAW AND ARGUMENTS
        In the context of veterans claims, the purpose of EAJA is to "ensure that litigants 'will not
be deterred from seeking review of, or defending against, unjustified government action because
of the expense involved.'"3 Congress spoke directly to how a prevailing party in litigation against
the Government was to initiate its request to obtain an award pursuant to the statute. Congress
provided that "[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" making
certain showings.4 The Supreme Court has made clear that this 30-day period for filing an EAJA
application is not jurisdictional.5 Our Court has interpreted the Supreme Court's ruling to mean
that our Court may apply the doctrine of equitable tolling to EAJA applications. 6 Although
Congress did recommend some adjudicatory principles for courts to apply to an EAJA application
when it comes time to issue a dispositive ruling, Congress did not instruct courts how they should
process and develop a properly and timely filed application.

         Congress explicitly provided this Court with "broad discretion to prescribe and apply its
own rules."7 Under that authority, the Court incorporated section 2412(d)(1)(B) into our Rule 39(a)
by requiring that an EAJA application "shall be submitted for filing with the Clerk not later than
30 days after the Court's judgment becomes final." While our Rule 39(a) does not say so, that 30-
day filing requirement is subject to equitable tolling under established law. 8 Our Court also
exercised its authority to prescribe rules to deal with a matter Congress did not address in the EAJA
statute. Specifically, we established a 30-day timeline for the Secretary to file his EAJA response.9
Pertinent to this matter, and as we noted above, the Court's Rule 26(b) provides that "[t]he Court
may grant an extension of time not to exceed a total of 45 days for any particular filing for good
cause," and that includes a response to an EAJA application.10

       The parties do not dispute that (1) Congress set the timeline for an applicant to file an EAJA
application; (2) Congress did not establish a deadline for the Government to exercise its

3
 Wagner v. Shinseki, 640 F.3d 1255, 1258 (Fed. Cir. 2012) (quoting Scarborough v. Principi, 541 U.S. 401, 407
(2004)).
4
    28 U.S.C. § 2412(d)(1)(B). Section 2412(d)(1)(B) further provides that the applicant must
           show[] 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.
5
    Scarborough, 541 U.S. at 414; see Townsend v. Comm'r of Soc. Sec., 415 F.3d 578, 583 (6th Cir. 2005).
6
 Bly v. McDonald, 28 Vet.App. 256, 261 (2016), vacated on other grounds sub nom. Bly v. Shulkin, 883 F.3d 1374
(Fed. Cir. 2018).
7
    Checo v. Shinseki, 748 F.3d 1373, 1377 (Fed. Cir. 2014); see 38 U.S.C. § 7262(a).
8
  Scarborough, 541 U.S. at 414; Townsend, 415 F.3d at 583; Bly, 28 Vet.App. at 261; Morrow v. McDonald,
27 Vet.App. 92, 93-94 (2014) (Greenberg, J., concurring).
9
    U.S. VET. APP. R. 39(b).
10
     U.S. VET. APP. R. 26(b); see White v. Nicholson, 19 Vet.App. 211, 214 (2005).




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responsibilities under section 2412(d)(1)(B) to respond to an EAJA application; and (3) the Court
has "broad discretion to prescribe and apply its own rules."11 Rather, the basis for the dispute we
face today is the a difference between the "extraordinary circumstances" standard that an applicant
must satisfy to equitably toll the statutorily imposed deadline for submitting an EAJA application
and the "good cause" standard that the Secretary must satisfy to extend the Court-imposed deadline
to file an EAJA response.

        Appellant focuses on the difference in these two standards when he argues that the Court's
use of Rule 26(b) to allow the Secretary additional time to respond to EAJA applications fails to
keep the parties on "equal footing." 12 Because an EAJA applicant is required to show
"extraordinary circumstances" to receive additional time to file an EAJA application though the
Secretary need only show "good cause" under Rule 26(b), he asserts that the grant of an extension
of time under the Rule 26(b) standard to file a response to an EAJA application is both contrary to
section 2412(d)(1)(B) and an abuse of this Court's discretion. He concludes that because the
Secretary did not show that an extraordinary circumstance prevented him from timely filing an
EAJA response despite his diligent efforts, the Court should deny his motion for extension of
time.13

         The Secretary argues that the Court's "long-standing practice of granting motions for
extensions of time to file [an] EAJA response has not had a chilling effect on appellants pursuing
their right to challenge VA action"—the purpose of EAJA.14 He further contends that "Congress's
silence on imposing a mandatory statutory period for the government to respond indicates that
there is none, and, thus, nothing that would preclude the Court from granting a routine extension
of time upon a showing of good cause."15 He urges we should reject the appellant's arguments
about the invalidity of Rule 26(b) and grant his motion for an extension. While we don't accept
that the longstanding nature of a practice insulates it from serious review, we think the Secretary
otherwise has the better argument.

                                         II. ANALYSIS
     A. The Court's "good cause" standard under Rule 26(b) is not inconsistent with the EAJA
         statute.
         In section 2412(d)(1)(B), Congress expressly provided the deadline for a prevailing party
in litigation against the Government to file an EAJA application. In contrast, there is nothing in
the statute establishing a deadline for the Government to respond to the application. 16 "When
Congress includes particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and purposely in the

11
  Checo, 748 F.3d at 1377; see 38 U.S.C. § 7262(a); see also Appellant's Oct. 29, 2019, Opposition at 6-7; Secretary's
Brief (Br.) at 3-5.
12
     Appellant's Supplemental Br. at 7.
13
     Id. at 6-7.
14
     Secretary's Br. at 2-3.
15
     Id. at 4.
16
     Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006).




                                                            3
disparate inclusion or exclusion." 17 Had Congress desired to establish a time limit for the
Government, it could have easily done so. It did not. In short, Congress left a gap to fill in terms
of processing an EAJA application.

        Because Congress chose not to set a time limit for the Government's response under section
2412(d)(1)(B), the Court acted under its authority to prescribe EAJA application processing rules.
In other words, we filled the gap Congress left.18 We did so in Rule 39(a) in which we first
mirrored the 30-day requirement for a prevailing party to file an application that appears in the
EAJA statute. No one takes issue with that choice or with the fact that we also adopted a 30-day
period for the Secretary to file a response. But we permitted Rule 26(b), the Court's general rule
for seeking extensions of time for filings based on a showing of "good cause," to apply to the
Secretary's Court-imposed 30-day EAJA response period. The Court specifically stated that Rule
26(b) did not apply for initial EAJA applications as caselaw dictated that a higher burden of
"extraordinary circumstances" was required for equitable tolling if an applicant misses the 30-day
statutory deadline. We conclude that choice was lawful.

        To begin with, the imposition of a "good cause" standard is not inconsistent with the EAJA
statute. The reason is simple: Congress said nothing at all about the subject. The appellant does
not seriously dispute that point. His primary argument is that the "good cause" standard is
inconsistent with the general purpose of the EAJA statute. We disagree. Congress made it clear
that EAJA is intended to place the Government and civil litigants on "equal footing" in the sense
of "improv[ing] citizen access to courts and administrative proceedings."19 We cannot conclude
that granting relatively brief extensions of time under the "good cause" standard seriously threatens
that purpose. The appellant has presented us with no evidence that such extensions of time have
reduced the incentive for attorneys to represent veterans in this Court, much less evidence
indicating that a reduction in attorney participation has undermined veteran access to the judicial
review that we offer.

                B. The Court's "good cause" standard under Rule 26(b) is lawful.
       Having concluded that the Secretary's opportunity to obtain an extension of time to file an
EAJA response for "good cause" is not inconsistent with the EAJA statute or its general purpose,
we are left with the question whether application of the "good cause" standard in Rule 26(b) to
Rule 39(a)(1) is arbitrary, capricious, or otherwise unlawful.20 It is not. Of course, a "good cause"



17
     Russello v. United States, 464 U.S. 16, 23 (1983).
18
     See 38 U.S.C. §§ 7262(a), 7264(a).
19
     H.R. REP. 96-1418, at 4987, 4991.
20
   38 U.S.C. § 7264(a); see McGee v. Wilkie, 31 Vet.App. 368, 371 (2019) (stating that the Court has the implied
authority to interpret its own rules); see also Bly v. Shulkin, 883 F.3d at 1377 (recognizing the Court's authority to
promulgate its own rules, but finding that the statute controls when the Court's rule differed from the corresponding
statute); cf. United States v. Scheffer, 523 U.S. 303, 308 (1998) (concluding that the state court's rule for admitting
evidence in a criminal case was neither "'arbitrary'" nor "'disproportionate to the purposes they are designed to serve'"
(quoting Rock v. Arkansas, 107 Sup. Ct. 2704, 2711 (1987))).




                                                           4
standard is easier to satisfy than one based on "extraordinary circumstances."21 But adopting the
lower "good cause" standard in Rule 26(b) makes good sense.

       First, while the congressional direction that a prevailing party in litigation against the
Government file an EAJA application within 30 days of judgment is not jurisdictional, it is an
important litigation event crafted as part of the Government's decision to waive its sovereign
immunity.22 Once the Court accepts a timely filed application, it must concern itself with properly
adjudicating that application, a different matter altogether, with different institutional implications
and adjudicatory demands. It is entirely reasonable for the Court to control EAJA litigation in the
manner it deems necessary to produce a fair and accurate result.

       Second, the "good cause" standard is commonly used in Federal procedure.23 Thus, the
adoption of a well-worn standard for addressing procedural matters is not arbitrary. "Good cause"
is easy for litigants in this Court to understand and argue, both by reference to our consistent
application of that standard to countless motions and to its appearance in Federal practice in
general.24

        Third, allowing for extensions based on "good cause" as opposed to "extraordinary
circumstances" is consistent with the overarching purposes of the veterans benefits system. The
Government has an obligation to ensure that funds from the public fisc are not spent
inappropriately, which would happen if the Government did not scrutinize EAJA applications.25
If the Court allowed extensions of time for the Secretary to respond to an EAJA application only
if there were "extraordinary circumstances," we may force him to choose between expending his
resources on his mission to efficiently and effectively address veterans' appeals on the merits
before the Court and protecting public funds by thoroughly reviewing EAJA applications. That is
inconsistent with the overall goal of the veterans benefits system.26 Adopting the "good cause"


21
  Compare Smith v. Shinseki, 26 Vet.App. 406, 409-11 (2014) (providing that Black's Law Dictionary defines "good
cause" as a "'legally sufficient reason' for an action and is 'often the burden placed on a litigant (usu[ally] by court rule
or order) to show why a request should be granted or an action excused'" (alteration in original)), with Evans v.
Shinseki, 17 Vet.App. 41, 53-54 (2003) (providing that Black's Law Dictionary defines "extraordinary circumstances"
as "'[a] highly unusual set of facts that are not commonly associated with a particular thing or event'" (alteration in
original)).
22
     See Scarborough, 541 U.S. at 414.
23
     See, e.g., FED. R. CIV. P. 4, 6, 15, 16, 65; FED. R. APP. P. 4, 26, 30, 31.
24
  See , e.g., Skaar v. Wilkie, __Vet.App.__, ___, 2019 WL 6647587, at *21 (U.S. Vet. App. Dec. 6, 2019) (en banc
order) (recognizing the utility of using other Federal rules as guides when we address similar issues); Wilkie, 30
Vet.App. 167 (2019); Demery v. Wilkie, 30 Vet.App. 430 (2019); McCreary v. Nicholson, 19 Vet.App. 324, 330-31
(2005) (explaining that the Court incorporated the standards used by other courts when determining when equitable
tolling based on extraordinary circumstances will be applied).
25
     See, e.g., Brock v. Pierce Cty., 476 U.S. 253, 259-60 (1986); Rhodan v. West, 12 Vet.App. 55, 58 (1998).
26
  VA continues to develop ways to efficiently address the merits of veterans' claims, as evidenced by the creation of
a modern review system that streamlines the veterans claims process. See generally Veterans Appeals Improvement
and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017); VA Claims and Appeals
Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019) (final rule).




                                                                5
standard appropriately balances the importance of focusing on merits determinations with the need
to provide timely and correct processing of EAJA applications.

                                        III. CONCLUSION
        Having concluded that Rule 26(b) is lawful, we will apply it to the motion before us. Under
38 U.S.C. § 7264(a), this Court clearly has the authority to interpret its rules of practice and
procedure.27 We conclude that the appellant's opposition to the Secretary's motion is unconvincing
and that the Secretary's workload considerations paired with the voluminous nature of the
appellant's EAJA application as well as the need to seek supervisory approval reflect good cause
sufficient to grant an extension of time here. Therefore, the Court will grant the Secretary's motion
for an extension of time to file his EAJA response.

       Finally, because the Court has granted the Secretary an extension of time to file his EAJA
response, the Court will not address its review of EAJA applications where the Secretary fails to
submit a response or a requested extension is not granted. Those circumstances are not present
here. To be clear, we express no opinion on that matter.

           Upon consideration of the foregoing, it is
           ORDERED that the Secretary's motion to stay proceedings is denied as moot. It is further

        ORDERED that the Secretary's motion for an extension of time to file his EAJA response
is granted. It is further

        ORDERED that the Secretary must file his response not later than 45 days from the date
of this order. And it is further

       ORDERED that once the Secretary has filed his response the remainder of the EAJA
proceedings will continue in accordance with the Court's Rules. See U.S. APP. VET. R. 39.

DATED: February 5, 2020                                                PER CURIAM.


         ALLEN, Judge, concurring: I join the opinion of the Court in full. I write separately to
make an important point–one that parties appearing before the Court should take to heart. Litigants
are not entitled to an extension of time as a matter of right. Entitlement to an extension of time is
granted at the Court's discretion and on a case-by-case basis. And if the Court does not act on a
motion before the relevant document is due, that document is due in the time provided by the
Rules.28 In this matter, the Court implicitly exercises its authority to suspend Rule 26(b)(3). I agree
that to do so is appropriate given the unique nature of the dispute raised by the parties that required
a precedential order, but at least for me parties should plan accordingly in other matters as that
may not always be the case.


27
     McGee v. Wilkie, 31 Vet.App. 368, 372 (2019).
28
     U.S. VET. APP. R. 26(b)(3).



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