____________________________________________ MOTION TO DISMISS DENIED: December 10, 1993 ____________________________________________ GSBCA 11735-C(11171) GRIFFIN SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Karl Dix, Jr. and George Papaioanou of Smith, Currie & Hancock, Atlanta, GA, counsel for Appellant. Jerry Ann Foster, Office of the Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges NEILL, HYATT, and DeGRAFF. HYATT, Board Judge. Pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), Griffin Services, Inc. has filed an application for attorney fees and expenses incurred in its appeal of the General Services Administration's (GSA's) denial of its claim. Griffin Services, Inc., GSBCA 11171, 92-1 BCA 24,556 (1991). We ruled in a decision dated October 31, 1991, that Griffin was entitled to $5,369.87 plus interest for repair expenses incurred under a maintenance contract as a result of vandalism. GSA contends that Griffin's application for fees is untimely and has thus filed a motion to dismiss this matter for lack of jurisdiction. We find that Griffin's application is timely because it was filed within thirty days of the final disposition of Griffin's appeal. GSA's motion is accordingly denied. Background On March 28, 1991, Griffin appealed to the Board from the contracting officer's denial of a claim for $5,369.87 for extra expenses incurred in connection with its contract to repair and maintain heating, ventilation, and air conditioning equipment in a Government building in Dallas, Texas. In its appeal, Griffin maintained it was entitled to an equitable adjustment because certain repairs it was required to perform were necessitated by vandalism. GSA took the position that the contract required that the repairs be made by appellant regardless of cause and that no vandalism had occurred. On October 31, 1991, the Board issued an opinion granting Griffin's appeal. Pursuant to its usual practice, the Board enclosed with its opinion copies of a standard form "certificate of finality." Griffin filed a certificate of finality signed by its president on November 11, 1991. Griffin's certificate stated in relevant part: Griffin Services, Inc. hereby certifies that: (1) it has not initiated and will not initiate any proceeding at this Board for the reconsideration of, or relief from, this award; (2) it has not initiated and will not initiate any appeal of this award to the United States Court of Appeals for the Federal Circuit . . . and (3) it agrees to accept the amount awarded, plus any interest awarded, in accordance with the Board's decision in this case, in full and final satisfaction of its case. (4) Griffin Services, Inc. reserves its right to recover any costs of pursuing this appeal which are permitted under the Equal Access to Justice Act.[foot #] 1 GSA filed a certificate of finality signed by the contracting officer on November 18, 1991. GSA did not alter the standard language in its certification. Neither party served the other with a copy of its certificate of finality. On January 24, 1992, the Board forwarded a certificate for payment signed by the Board's clerk and supporting documents, including the certificates of finality, to the United States General Accounting Office (GAO) for payment from the permanent indefinite judgment fund. 31 U.S.C. 1304 (1988); Rule 36(c).[foot #] 2 The Board also sent copies to the parties. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The first three paragraphs were standard provisions contained in the form sent to Griffin. The fourth paragraph--a reservation of the right to seek EAJA fees--was added by Griffin. Griffin's reservation has no effect on the timeliness of Griffin's fee application, however. [foot #] 2 48 CFR 6101.36(c) (1993). ----------- FOOTNOTE ENDS ----------- On February 21, 1992, Griffin filed an application for the award of attorney fees under the Equal Access to Justice Act. The Government responded with its motion seeking dismissal of that application as untimely filed. Discussion The Equal Access to Justice Act permits an award of reasonable attorney fees and expenses to a party that prevails in a civil action against the United States, unless the Government's position was substantially justified. EAJA contains a thirty-day deadline for filing an application for such fees and expenses. EAJA states in pertinent part: (a)(2) A party seeking an award of fees and other expenses shall, within 30 days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section . . . . 5 U.S.C. 504 (a)(2) (1988) (emphasis added). The thirty-day period for filing an application for fees under EAJA is jurisdictional; it cannot be waived by the Board or the parties. J.M.T. Machine Co. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987); Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1206 (5th Cir. 1991). Moreover, an application filed before the "final disposition" has been held to be premature, Mohamed, GSBCA 9547, 89-2 BCA 21,885, aff'd, 925 F.2d 1478 (Fed. Cir. 1991) (table); one filed more than thirty days after the final disposition will be deemed "untimely." J.M.T. Machine Co., 826 F.2d at 1048. Thus, for the Board to have jurisdiction over Griffin's request for fees, Griffin's request must have been filed within thirty days after the Board's decision became a final disposition. "Final disposition" is not defined by EAJA and "scant attention [in the legislative history] has been paid to this phrase." Phoenix Roofing, 922 F.2d at 1206. Although EAJA does not define "final disposition" in the section of the statute applicable to agency proceedings, it defines "final judgment" in the "court" section as "a judgment that is final and not appealable." 28 U.S.C. 2412(d)(2)(G) (1988). Additional guidance is provided by the Model Rules of the Administrative Conference. The Model Rules state as follows: (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after this agency's final disposition of the proceeding. (b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, become a [sic] final and unappealable, both within the agency and to the courts. 1 CFR 315.204 (1992) (emphasis added). A final disposition occurs when a "decision has become final and it is too late to appeal." J.M.T. Machine Co., 826 F.2d at 1048 (citing Taylor v. United States, 749 F.2d 171 (3d Cir. 1985)); Mohamed, 89-2 BCA at 110,115. The Federal Circuit has stated that under the Contract Disputes Act of 1978 this occurs 120 days after the parties have received a copy of the decision. J.M.T. Machine Co., 826 F.2d at 1048; 41 U.S.C. 607(g)(1) (1988). Defining "final disposition" in this manner "avoids both the unnecessary fragmentation of the fee petitions and the waste of judicial resources that would result from filing multiple petitions in different courts for fees incurred in one case." Phoenix Roofing, 922 F.2d at 1207. The Board's procedures governing certificates of finality are contained in Rule 36, Payment of Board Awards. These procedures are intended to provide a mechanism to facilitate a more prompt payment of the award amount when the parties do not wish to pursue an appeal. Rule 36 provides in relevant part: (b) Conditions for payment. Before a party may obtain payment of a board award pursuant to 31 U.S.C. 1304, one of the following must occur: (1) All parties must, by execution of a Certificate of Finality, waive their rights to relief under Rules 32 and 33 and also their rights to appeal the decision of the Board to the United States Court of Appeals for the Federal Circuit; or (2) The time for an appeal to the United States Court of Appeals for the Federal Circuit must expire. (c) Procedure for filing of certificates of finality. Whenever the Board issues a decision or an order awarding a party any amount of money, it will attach to the copy of the decision sent to each party forms such as those illustrated in the Appendix to these rules. The conditions for payment prescribed in subparagraph (b)(1) of this rule are satisfied if each of the parties returns a completed and duly executed copy of this form to the Board. . . . Upon receipt of completed and duly executed Certificates of Finality from the parties, the Board will forward a copy of each such certificate . . . and a certified copy of its decision to the [GAO] to be certified for payment. GSA argues that under Rule 36 the Board's decision became final on November 18, 1991, when GSA filed its certificate of finality with the Board. Under GSA's reasoning, Griffin was required to file its EAJA application by December 18, 1991 (thirty days after the final disposition). Therefore, according to GSA, Griffin's application, filed February 21, 1992, is untimely. We are not persuaded by GSA's analysis. For a "final disposition" to occur prior to the expiration of the statutory time to appeal,[foot #] 3 the parties must properly file with the Board valid certificates of finality. Neither party here placed any restrictions on its statement relinquishing the right to seek further reconsideration of, or relief from, the Board's decision, and relinquishing the right to appeal the decision to the United States Court of Appeals for the Federal Circuit. When GSA filed its certificate of finality on November 18, 1991, however, it failed to serve a copy on Griffin. Likewise, Griffin did not serve a copy of its certificate on GSA. Under Rule 3, with few exceptions (which are not pertinent here), service is required to be made on other parties whenever "any document" is filed with the Board. If proper service is not effected, the Board is free to reject the documents or take appropriate measures to ensure proper service is made. In essence, the Board "cured" the defective filings of both parties when it forwarded copies of the certificates to both parties on January 24, 1992. At that time, "final disposition" within the meaning of EAJA occurred by operation of law because no further right of appeal existed. See Altgelt Investments, Inc., GSBCA 9980-R, 91-2 BCA 23,935 (once valid certificates of finality are filed with Board, Board lacks power to grant relief from its order). Griffin timely filed its application within thirty days after this date. This holding is consistent with the final disposition requirement's purpose of "establish[ing] a reasonable procedure, avoiding piecemeal fee requests, yet serving the interest of justice." Beta Systems, Inc. v. United States, 866 F.2d 1404, 1406 (Fed. Cir. 1989). It also results in a reasonable procedure for determining the time of final disposition when the parties fail to comply with Rule 3. In that case, assuming the ----------- FOOTNOTE BEGINS --------- [foot #] 3 In the absence of certification, a party that chooses to take an appeal to the United States Court of Appeals for the Federal Circuit has 120 days from the date of receipt of the Board's opinion to do so. Contract Disputes Act of 1978, 41 U.S.C. 607(g)(1) (1988). ----------- FOOTNOTE ENDS ----------- appeal period has not yet expired, the decision becomes final when the defective filing is cured.[foot #] 4 Decision Respondent's motion to dismiss is DENIED. _________________________________ CATHERINE B. HYATT Board Judge We concur: __________________________ __________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 4 As such, our ruling serves the interests of justice. If, as GSA suggests, the Government could trigger the deadline for filing an EAJA application merely by sending its certificate to the Board without serving the opposing party, then the Government could fail to notify an appellant of its certification, as occurred here, and thirty days later could argue that the time for application had expired. This would be particularly unfair because an applicant who was not told of the Government's certification could not know either when the period for an application began to run or when it had ended. To adopt this interpretation of the final disposition requirement would "provide a basis for [a] fatal misguess." Beta Systems, Inc., ___________________ 866 F.2d at 1406.