DIRECTOR REVIEW DETERMINATION

UNITED STATES DEPARTMENT OF AGRICULTURE

OFFICE OF THE SECRETARY

NATIONAL APPEALS DIVISION

EAJA DIRECTOR DETERMINATION

 

 

 

In the Matter of

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)

XXXXX

)       Case Nos. 2013S000432

XXXXX

)                        2013S000433

XXXXX

)                        2013S000434

 

)

XXXXX

)       Case Nos. 2014S000314

XXXXX

)                        2014S000315

XXXXX

)                        2014S000316

      Applicants

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)

and

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FARM SERVICE AGENCY

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      Agency

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DECISION AND ORDER

 

These consolidated cases concern requests for Director review of two Equal Access to Justice Act (or EAJA) Determinations issued by a National Appeals Division (or NAD) Adjudicative Officer on October 7, 2015.[1]  In the two EAJA determinations, a NAD Adjudicative Officer denied the EAJA applications of XXXXX, XXXXX, and XXXXX XXXXX, XXXXX (collectively, the Applicants) for attorney fees and other expenses incurred in connection with two groups of adversary adjudications by NAD because he determined that the EAJA applications were not timely filed.[2]  He also denied the EAJA applications on the basis that the Applicants were not prevailing parties in some of the NAD adversary adjudications.  Based on my review of the entire record, I find that the Applicants’ EAJA applications were not timely filed in regard to their claim for expenses incurred in connection with the NAD adversary adjudications in 2013 (the 2013 NAD appeals), but were timely filed in regard to their claim for expenses incurred in connection with the NAD adversary adjudications in 2014 (the 2014 NAD appeals).  I also find that the Applicants were not prevailing parties in the 2013 NAD appeals.  I remand these cases to the Adjudicative Officer for further consideration of the Applicants’ EAJA applications and issuance of a new EAJA Determination in accordance with this Decision and Order. 

 

Issues in these Cases

 

The first issue I must decide in these cases is whether the Applicants’ EAJA applications were timely filed.  In order to resolve that issue, I must determine the time within which a party to an adversary proceeding before NAD must file an EAJA application.  See 7 C.F.R. § 1.193.[3]  The second issue I must determine is whether the Applicants were prevailing parties in the 2013 NAD appeals.  See 7 C.F.R. § 1.185.[4]

 

Background

 

These cases arise under the Equal Access to Justice Act (or EAJA), 5 U.S.C. § 504, which provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before federal agencies. 

 

The adversary adjudications in these cases arose under the 2010 SURE program, which authorizes the Secretary of Agriculture to provide agricultural disaster assistance to producers who have qualifying crop losses due to an eligible disaster event.  See 7 C.F.R. § 760.601(b).  The Applicants operated nurseries in XXXXX, XXXXX in 2010, and suffered damage to their inventories of palm trees as a result of a severe freeze that occurred in January of that year.  In February 2010, each of the three Applicants filed an application for benefits under the SURE program with their local FSA office.  In May 2013, the FSA county committee denied all three of the applications because FSA could not determine the value of the Applicants’ inventories.    

 

The Applicants appealed each of FSA’s denial decisions to NAD.  NAD consolidated the three appeals and a NAD Administrative Judge conducted a combined hearing for all three appeals.[5]  However, before the Administrative Judge issued decisions on the appeals, FSA withdrew its denials of all three applications for benefits.[6]  As a result of FSA’s withdrawal of the decisions, the NAD Administrative Judge dismissed the Applicants’ NAD appeals on the grounds that he no longer had jurisdiction to consider them.  The Applicants did not request Director review of the Administrative Judge’s orders dismissing their NAD appeals, nor did they appeal the Administrative Judge’s dismissal decisions to the XXXXX.

 

In April 2014, after reconsidering the Applicants’ applications for benefits under the SURE program, the FSA county office again denied them.  This time, the reasons that FSA gave for denying the applications were that the Applicants had cancelled their crop insurance policies and that they failed to timely file their crop acreage reporting form, which is known as the FSA-578.

 

The Applicants again appealed to NAD.  A NAD Administrative Judge conducted another combined hearing on the three appeals and then issued a separate Appeal Determination in each appeal on August 20, 2014.  In each appeal, the Administrative Judge determined that FSA erred in regard to both of the reasons it provided when it denied the applications for benefits under the SURE program.  Applicants’ counsel received the Appeal Determinations on the day they were issued.[7]  Neither the Applicants nor FSA requested Director review of the Administrative Judge’s August 20, 2014 Appeal Determination.

 

On October 15, 2014, each of the three Applicants mailed an EAJA application to NAD by priority mail with delivery confirmation requested.  In each of their EAJA applications, the Applicants globally requested fees and expenses incurred in connection with their 2013 and 2014 NAD appeals.  On Saturday, October 18, 2014, the post office in XXXXX, XXXXX placed a notice in NAD’s XXXXX Regional Office’s post office box indicating that the Applicants’ priority mail packages were available for pick-up.[8]  On Tuesday, October 21, 2014, the Applicants’ EAJA applications were marked “Received” by NAD.  The record does not disclose whether a NAD employee picked up the packages on Monday, October 20, 2014, or Tuesday, October 21, 2014.

 

FSA filed an answer in response to the Applicants’ EAJA applications in which it objected to the hourly rate requested by the Applicants and to the request for paralegal fees.  It did not object to the timeliness of the applications, nor did it contest whether the Applicants were prevailing parties, or whether FSA’s positions in the NAD appeals were substantially justified.  See Agency’s Answer to EAJA Petition.

 

The Adjudicative Officer then asked the parties to provide him with statements of their positions in regard to whether: 1) the Applicants prevailed in the 2013 NAD appeal considering that FSA withdrew the adverse decisions prior to NAD issuing an appeal determination; 2) the EAJA applications were timely filed considering that they were not perfected until October 21, 2014, and 3) the Applicants may be awarded attorney fees and costs incurred in connection with preparing the EAJA applications.  See Appeal Determinations at 4.

 

FSA responded to the Adjudicative Officer’s request by arguing that the Applicants were not prevailing parties in the 2013 NAD appeals because no judgment was entered and the Applicants did not prevail on the merits.  The agency also asserted that the EAJA applications were not timely filed in regard to the 2013 NAD appeals because any application for costs incurred with that proceeding had to be filed within 30 days of November 18, 2013, which was the date that the Administrative Judge dismissed the Applicants’ 2013 NAD appeals.  FSA’s response did not address whether the Applicants’ EAJA applications were timely filed as to the costs incurred in connection with the 2014 NAD appeals.

 

The Applicants responded to the Adjudicative Officer’s request by arguing that the 2013 and 2014 NAD proceedings were, in effect, one, continuous proceeding. 

 

The Adjudicative Officer issued two consolidated EAJA Determinations on October 7, 2015, in which he denied all of the Applicants’ EAJA applications.  In regard to the 2013 NAD appeals, the Adjudicative Officer determined that the EAJA applications were not timely filed.  In reaching that conclusion, he stated that:

 

The November 18, 2013, Notices of Dismissal were administratively final on the date entered. An applicant has 30 days from the date of a final disposition to file an EAJA application.  See 5 U.S.C. § 504(a)(2) and 7 C.F.R. § 1.193(a).  In this case, NAD received the Applicants’ consolidated EAJA Application in the 2013 Cases on October 21, 2014, which was more than 30 days after the November 18, 2013, Notices of Dismissal NAD issued in the 2013 Cases became final. 

 

As NAD received the consolidated EAJA Application more than 30 days after the November 18, 2013, Notices of Dismissal issued in the 2013 Cases, I conclude it was not timely. 

 

EAJA Determination (NAD Case Nos. 2013S000432-444) at 7 (record citations omitted).

 

Also in regard to the 2013 NAD appeals, the Adjudicative Officer found that the Applicants were not prevailing parties and therefore not entitled to an EAJA award.  In reaching that decision, he determined that:

 

As the Notices of Dismissal entered in the 2013 Cases did not evaluate the merits of the Applicants’ appeals, did not require FSA to take specific action concerning the Applicants’ 2010 SURE Applications, and did not contemplate any judicial enforcement, I conclude the notices lack the stamp of “judicial imprimatur.”  Thus, I conclude that the Applicants are not prevailing parties as it relates to the 2013 Cases.

 

Id. at 7-8 (citing Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-605 (2001)).

 

In regard to the 2014 NAD appeals, the Adjudicative Officer determined that the Applicants’ EAJA applications were not timely filed.  The Adjudicative Officer explained his rationale as follows:

 

On August 20, 2014, a NAD Hearing Officer issued an Appeal Determination in each of the 2014 Cases.  Based on Billing Invoice No. 3261, the Applicants received the August 20, 2014, Appeal Determinations on the date NAD issued them.  As neither the Applicants nor the Agency sought review before the Director of NAD, the August 20, 2014, Appeal Determinations became administratively final 30 days from the date of the Applicants’ receipt of the NAD Determinations in the 2014 Cases (September 19, 2014).  See 7 C.F.R. §§ 11.8(d) and 11.9(a).  An applicant has 30 days from the date of a final disposition to file an EAJA application.  See 5 U.S.C. § 504(a)(2) and 7 C.F.R. § 1.193.  Thirty days from the date the Appeal Determinations became final was Sunday, October 19, 2014.  Although the United States Postal Service post-marked the Applicants’ consolidated EAJA Application on October 15, 2014, NAD did not receive it until October 21, 2014.  Under 7 C.F.R. § 1.147(g), the Applicants’ consolidated EAJA Application is “deemed filed when it reaches the Hearing Clerk; or, if authorized to be filed with another officer or employee of the Department, it shall be deemed to be filed at the time when it reaches such officer or employee.”  Thus, as NAD did not receive Applicants’ consolidated EAJA Application until 2 days after the October 19, 2014, deadline, I conclude the consolidated EAJA Application was not timely.

 

EAJA Determination (NAD Case Nos. 2013S000314-315) at 6-7 (record citations omitted).

 

The Applicants then filed requests for Director review of the Adjudicative Officer’s EAJA Determinations.

 

Legal Authorities and Standard of Review

 

The key legal authorities at issue in these cases are the Equal Access to Justice Act (or EAJA), 5 U.S.C. § 504, and the USDA regulations codified at 7 C.F.R. part 1, subpart J and part 11.  The EAJA provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before federal agencies.  Its provisions are applicable to the USDA, including NAD.  See 7 C.F.R. §§ 1.182 and 11.4(a).  An eligible party may receive an award when it prevails over the USDA unless the position of the USDA was substantially justified or special circumstances make an award unjust.  See 7 C.F.R. § 1.181.  The Applicant has the burden of proving that it is an eligible individual or entity and has prevailed over the USDA.  5 U.S.C. § 556(d). 

 

In response to a request for Director review of an EAJA Determination, I review the Adjudicative Officer’s findings of fact and conclusions of law to determine whether they are correct.  The Administrative Procedure Act provides that when reviewing an Adjudicative Officer’s EAJA Determination, I have all of the powers which the Adjudicative Officer had in making the initial decision.  See 5 U.S.C.  557(b); see also 7 C.F.R. §§ 1.201(a), 1.145(a), and 2.35(a)(1).

 

Analysis

 

Were the Applicants’ EAJA Applications Timely Filed?

 

I first consider the issue of whether the Applicants’ filed their EAJA applications in a timely manner with NAD.  In support of their requests for Director review, the Applicants argue that the Adjudicative Officer erred in denying their EAJA applications as untimely filed.  Specifically, they assert in regard to their 2014 NAD appeals that the EAJA applications should be considered to have been filed on the date that they were mailed; i.e., on October 15, 2014, which was within the 30-day filing deadline.  In support of that argument, Applicants cite two EAJA Determinations rendered by NAD Adjudicative Officers — EAJA No. 2013E000198 (Adj. Off., Nov. 13, 2013) and EAJA No. 2012E000782 (Adj. Off., Nov. 13, 2013) — both of which held that an EAJA application is deemed to have been filed on the date it was postmarked.[9]  Applicants also argue that even if the Adjudicative Officer was correct in finding that an EAJA application is not considered filed until it is received by NAD, in this case their applications were timely filed because the record shows that they were received by NAD on October 20, 2014, which was within the 30-day filing deadline. 

 

The Applicants also challenge the Adjudicative Officer’s decision to apply the procedures set forth in 7 C.F.R. § 1.147 for filing, service, extensions of time, and computation of time rather than the procedures codified in the NAD regulations found at 7 C.F.R. Part 11.  See Applications for Director Review at 2-8.  The Applicants point out the practical problems resulting from applying the procedures set forth in 7 C.F.R. § 1.147, such as the requirement that EAJA applications be filed in the “Clerk’s Office,” which is an office in XXXXX administered not by NAD but by the Offices of the USDA Administrative Law Judges and the USDA Judicial Officer.

 

In response, FSA argues that the Applicants did not “perfect” their EAJA applications within the 30-day window for filing an application for fees and expenses.  Specifically, FSA argues that when the 2013 NAD appeals were dismissed by NAD on November 18, 2013, the 30-day deadline for filing an EAJA application was triggered, at least with respect to any fees and expenses incurred in connection with the 2013 NAD appeals.  Since the Applicants “perfected” their EAJA applications on October 21, 2014, FSA contends that the Applicants missed the 30-day filing deadline by 337 days.  See Agency Response to Adjudicative Officer’s Request at 5.[10]

 

The Applicants correctly point out that several decisions issued by NAD Adjudicative Officers have held that, in accordance with 7 C.F.R. § 11.14(a), an EAJA application is deemed to have been filed on the date it is post-marked.[11]  On the other hand, the Adjudicative Officer in this case found that the appropriate rule for determining the date of filing is the regulation set forth in 7 C.F.R. § 1.147(g), which states that a document is “deemed filed when it reaches the Hearing Clerk; or, if authorized to be filed with another office or employee of the Department, it shall be deemed to be filed at the time when it reaches such officer of employee.”  

 

I agree with the Adjudicative Officer that the regulations codified at 7 C.F.R. part 1 apply to EAJA applications filed in connection with NAD appeals, see 7 C.F.R. § 11.4(a); therefore, the proper provision for determining whether an EAJA application has been timely filed with NAD is the regulation codified at 7 C.F.R. § 1.147(g), which, as noted above, provides that a document is “deemed filed” when it “reaches” the Clerk’s office or another authorized office of the Department. 

 

In this case, NAD’s office in XXXXX, XXXXX was authorized to receive the Applicants’ EAJA applications and the evidence submitted by the Applicants with their Requests for Director Review establishes that the Applicants’ EAJA applications “reached” NAD’s XXXXX office on October 18, 2014, when it was deposited in that office’s post office box. 

 

As noted above, a prevailing party in a NAD appeal must file an application for an EAJA award of fees and expenses within 30 days of a final disposition of their NAD appeal.  See 5 U.S.C. § 504(a)(2); see also 7 C.F.R. § 1.193(a).  In this case, and for reasons that will be explained more completely below, I find that the dismissals of the 2013 NAD appeals became administratively final on November 18, 2013, while I find that the 2014 NAD Appeal Determinations became administratively final on September 19, 2014.  Therefore, the Applicants had until December 18, 2013, to file an EAJA application with respect to their 2013 NAD appeals, and until October 20, 2014, to file an EAJA application with respect to their 2014 NAD appeals.[12]  Based on my findings above, I further determine that the Applicants filed their EAJA applications with respect to both the 2013 and the 2014 appeals on October 18, 2014.  Therefore, the Applicants’ EAJA applications were not timely filed in regard to the 2013 NAD appeals because they did not reach NAD until October 18, 2014, which was ten months after the 30-day filing deadline.  On the other hand, I find that the Applicants did succeed in timely filing their EAJA applications in regard to the 2014 NAD appeals because, as noted above, their applications reached NAD on October 18, 2014, which was two days before the 30-day filing deadline.

 

Were the Applicants Prevailing Parties in the 2013 NAD Appeals?

 

Next, I consider whether the Applicants can be considered prevailing parties for the purpose of determining whether they qualify for an award of fees and expenses under EAJA.  As stated above, the Adjudicative Officer did not address whether the Applicants were prevailing parties with respect to their 2014 NAD appeals and no party presented arguments on that issue.  In the absence of a complete record, I decline to address the issue of whether the Applicants have met the criteria for qualifying as prevailing parties in connection with the 2014 NAD appeals; instead, I remand these cases to the Adjudicative Officer to conduct further proceedings on that issue and other issues, as set forth below.  Thus, the only remaining issue to be decided in the present matter is whether the Applicants may recover their fees and expenses incurred in connection with their 2013 appeals, which NAD dismissed after FSA withdrew its original adverse decisions. 

 

The Applicants argue that they are entitled to an award covering their fees and expenses incurred in connection with the 2013 NAD appeals because “the 2013 and 2014 cases form one single adversary adjudication which culminated in the 2014 determinations” and that is why each of them filed a single EAJA application seeking an award for their counsel’s work on both sets of appeals.  Accordingly, the Applicants object to the Adjudicative Officer splitting their global EAJA applications into separate applications for the 2013 and 2014 cases.  See Applications for Director Review at 9.  

 

FSA responds by arguing that the Adjudicative Officer properly determined that the Applicants were not prevailing parties in regard to the 2013 NAD appeals.  In support of that proposition, FSA asserts that the Administrative Judge’s dismissal of the Applicants’ NAD appeals following FSA’s withdrawal of its initial adverse decisions was not a final judgment and therefore the Applicants did not prevail on the merits of their appeals.[13] 

 

As I stated above, the Adjudicative Officer found that the Applicants were not prevailing parties in the 2013 NAD appeals and therefore not entitled to an EAJA award for their attorney fees and costs incurred in relation to those cases.  In reaching that decision, the Adjudicative Officer determined that:

 

As the Notices of Dismissal entered in the 2013 Cases did not evaluate the merits of the Applicants’ appeals, did not require FSA to take specific action concerning the Applicants’ 2010 SURE Applications, and did not contemplate any judicial enforcement, I conclude the notices lack the stamp of “judicial imprimatur.”  Thus, I conclude that the Applicants are not prevailing parties as it relates to the 2013 Cases.

 

See EAJA Determination (NAD Cases 2013S000432-434) at 7-8.[14] 

 

After carefully considering the arguments on both sides, I find that the Applicants were not prevailing parties in the 2013 NAD appeals.  Under USDA’s regulations, “A prevailing party may receive an award for fees and expenses incurred in connection with a proceeding in the adversary adjudication or at least a significant and discrete substantive portion of the proceeding.”  See 7 C.F.R. § 1.185. 

 

The issue presented in these cases is whether a party can be deemed to have prevailed in the NAD appeals process when an agency withdraws its adverse decision before a NAD Administrative Judge has issued an appeal determination on the merits.  That question has not been addressed in any prior NAD Director Review Determinations.  However, several NAD Adjudicative Officers have addressed that question and they have uniformly reached the conclusion that when an agency voluntarily withdraws its adverse decision and the NAD appeal is dismissed for lack of jurisdiction, the applicant is not a prevailing party for purposes of the EAJA. 

 

For example, in EAJA No. 2015W000049 (Adj. Off., July 28, 2015), a NAD Adjudicative Officer held that an applicant was not a prevailing party when the agency withdrew its order directing the applicant to take corrective measures in regard to a conservation easement.  NAD dismissed the appeal after the agency withdrew the adverse decision, and the applicant then filed an application for an EAJA award.  Relying on Buckhannon, the Adjudicative Officer found that while the agency’s dismissal of its corrective action directive certainly accomplished the goals of the applicant in the NAD appeal, the order dismissing the appeal was not the sort of “judicial imprimatur” required by Buckhannon to give the applicant prevailing party status.  Id. at 4-5.  See also EAJA No. 2016E000269 (Adj. Off., July 20, 2016) (holding that an EAJA applicant is not a prevailing party when an agency withdraws its adverse decision after the NAD hearing but before the Administrative Judge has issued a determination); EAJA No. 2013W000593 (Adj. Off., May 27, 2015) (holding that an applicant was not a prevailing party when NAD dismissed the applicant’s NAD appeal after the agency withdrew its adverse decision and gave the applicant the full relief he requested); and EAJA No. 2008W000454 (Adj. Off., October 15, 2008) (holding that an applicant is not a prevailing party when it reached a favorable settlement with the agency and requested that its NAD appeal be dismissed).

 

I agree with the rationales and the conclusions in all of the above cited cases.  I also note that the U.S. Supreme Court recently updated its Buckhannon analysis in regards to when a party can be considered a prevailing party after an agency has withdrawn its decision.  In CRST Van Expedited, Inc. v. E.E.O.C., ___ U.S. ___, 136 S.Ct. 1642 (2016), the Court first reiterated its holding in Buckhannon, stating that:

 

The Court has said that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782,] 792-793, 109 S.Ct. 1486. This change must be marked by “judicial imprimatur.” Buckhannon, 532 U.S., at 605, 121 S.Ct. 1835. The Court has explained that, when a plaintiff secures an “enforceable judgmen[t] on the merits” or a “court-ordered consent decre[e],” that plaintiff is the prevailing party because he has received a “judicially sanctioned change in the legal relationship of the parties.” Id., at 604-605, 121 S.Ct. 1835.

 

Id., at 1646.

 

The Court went on to hold that: “[A] favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed.”  Id.  Nevertheless, the Court made clear that some form of judgment is required before a party can be considered a prevailing party for the purposes of the EAJA. 

 

In this case, FSA’s withdrawal of the adverse decisions was a purely voluntary act by the agency that did not require the permission of either the Applicants or NAD.  The NAD orders dismissing Appellants’ 2013 appeals did not give administrative sanction to the resulting change in status of the parties, and their issuance by NAD therefore did not give the Applicants prevailing party status in regard to the 2013 NAD appeals. 

 

Order

 

In sum, I uphold the Adjudicative Officer’s EAJA Determinations in part and I reverse them in part.  The Adjudicative Officer correctly determined that, in regard to the 2013 NAD appeals, the Applicants’ EAJA applications were not timely filed and the Applicants were not prevailing parties.  However, the Adjudicative Officer erroneously determined that the Applicants’ EAJA applications were not timely filed in regard to the 2014 NAD appeals.  For the reasons explained above, I find that the Applicants succeeded in filing their EAJA applications within the 30-day deadline in connection with their 2014 NAD appeals.  Therefore, I remand these cases to the Adjudicative Officer for further consideration in accord with this Decision and for issuance of a new EAJA Determination. 

 

 

 

 

/S/

 

03/30/2017

Steven S. Silverman

 

Date

Director 

 

 

 


[1] Initial determinations on applications to NAD for an award of attorney fees and other expenses under EAJA are made by a NAD Administrative Judge.  When making EAJA determinations, NAD Administrative Judges are referred to as Adjudicative Officers.  See 7 C.F.R. § 1.180(b).  The Secretary of Agriculture has delegated to me, as the Director of the National Appeals Division, the authority to take final action on EAJA applications arising out of proceedings conducted under 7 C.F.R. Part 11.  See 7 C.F.R. § 1.189(b)(1). 

[2] There are two groups of adversary adjudications at issue in these cases.  The first group, referred to by the Adjudicative Officer as the 2013 cases, consists of  the Applicants’ appeals to NAD of  decisions issued by the Farm Service Agency (or FSA) in 2013 denying applications for benefits under the 2010 Supplemental Revenue Assistance Payments Program (or SURE).  Those adjudications are known as NAD Case Nos. 2013S000432, 2013S000433, and 2013S000434, or the 2013 NAD appeals.  The second group consists of the Applicants’ appeals to NAD of FSA decisions issued to each of them in 2014, which again denied their applications for benefits under the 2010 SURE program after FSA withdrew the original adverse decisions that it issued in 2013.  Those appeals are known as NAD Case Nos. 2014S000314, 2014S000315, and 2014S000316, or the 2014 NAD appeals.

[3] See NAD Case No. 2012E000627 (Dir. Rev., Feb. 25, 2013) (holding that the 30-day time limit on filing an EAJA application is statutory and cannot be extended)(citing 5 U.S.C. § 504(a)(2) and 7 C.F.R. § 1.194) (“. . .  the statutory 30 day time limit on filing the application as set out in §1.193 of this part may not be extended.”).

[4] The Adjudicative Officer did not address the issue of whether the Applicants were prevailing parties in the 2014 NAD appeals; thus, for reasons explained later in this Decision, and remand these cases to the Adjudicative Officer for further consideration of the Applicants’ claim for fees and expenses incurred in connection with the 2014 NAD appeals.

[5] At the time of the hearing, NAD Administrative Judges were called Hearing Officers.  In a memorandum dated November 25, 2014, I changed the working title for Hearing Officers to “Administrative Judge” for all adjudicative duties, including conducting hearings and issuing determinations under 7 C.F.R. Part 11.  This change became effective on December 1, 2014.

[6] “At any time an appeal is pending before NAD, FSA may withdraw the adverse decision if FSA determines that withdrawal is warranted.”  See FSA Handbook 1-APP (Rev. 2) Amend 3, Para. 24. 

[7] The same attorney has represented all three of the Applicants in the 2013 NAD appeals, the 2014 NAD appeals, and these EAJA proceedings.

[8] There is no indication in the Adjudicative Officer’s Determinations that he was aware that the Applicants’ EAJA applications reached the NAD XXXXX Regional Office’s post office box and were available for pick-up on Monday, October 20, 2014.  That information was provided by the Applicants as an exhibit to their Requests for Director Review.  See Applicant Director Review Exhibit A at 1-6.  I accept this evidence into the case record.  See 7 C.F.R. § 11.9(d)(1) (stating that the Director may accept new evidence on Director review in order to determine whether the Administrative Judge’s decision is supported by substantial evidence). 

[9] The two cases cited by the Applicants both relied on the provisions of 7 C.F.R. 11.14(a), which state that a document will be considered “filed” when delivered in writing to NAD, when postmarked, or when a complete facsimile copy is received by NAD.  In addition, NAD Case No. 2012E000627 (Dir. Rev., Feb. 25, 2013) at least implicitly affirms the application of 7 C.F.R. § 11.14(b) to determine that an EAJA application is considered filed when it is postmarked. 

[10] FSA did not address in its response whether the applications were timely in regard to the 2014 NAD appeals. 

[11] Acknowledging that the Applicants succeeded in post-marking their applications within the 30-day filing deadline for fees and expenses incurred in connection with the 2014 NAD cases, the Adjudicative Officer conceded that had he applied NAD’s filing rule; i.e., the rule codified at 7 C.F.R. § 11.14(a), the Applicants’ EAJA applications would have met the statutory filing deadline in regards to the 2014 cases.  See EAJA Determination (NAD Case Nos. 2014S000314-316) at 7 n.7.

 

[12] Technically, the 30-day deadline for filing an EAJA application with respect to the 2014 NAD appeals expired on October 19, 2014; however, because October 19, 2014, fell on a Sunday, the effective deadline for filing an application fell on the next business day, or October 20, 2014.  See 7 C.F.R. § 1.147(h).

[13] FSA cites Comm’r. INS v. Jean, 496 U.S. 154, 158 (1990), and Hanrahan v. Hampton, 446 U.S. 754 (1980), in support of its argument.

[14] In support of his determination, the Administrative Judge cited Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-605 (2001) (holding that for a party to be a prevailing party, there must be a “material alteration in the legal relationship between the parties” that is stamped with some “judicial imprimatur,” and that a “judicial imprimatur” occurs where the plaintiff has either received a judgment on the merits or a court-ordered consent decree).