Rule 39. Attorney Fees and Expenses
(a) Application. An application pursuant to 28 U.S.C. § 2412 (d) for award of attorney fees and/or other expenses in a case must be filed with the Clerk not later than 30 days after the Court’s judgment becomes final pursuant to 38 U.S.C. § 7291 (a) (which occurs 60 days after entry of judgment under Rule 36) or, consistent with Rule 41 (b), upon the issuance of an order on consent dismissing, terminating, or remanding a case. The time (which is a jurisdictional requirement set by the statute) for filing an application under this subsection may not be extended. See Rule 25 (filing and service). The application must include the fees and expenses claimed for the submission of that application.
(b) Response. Not later than 30 days after the date on which an application described in subsection (a) or a supplemental application described in subsection (c) or (d) is filed, the Secretary must file and serve a response to that application or supplemental application. The response must state which elements of the application or supplemental application are not contested and explain the Secretary’s position on those elements that are contested.
(c) Reply. Not later than 30 days after service of any response by the Secretary, the applicant may file and serve a reply addressing those matters contested by the Secretary. Any reply involving a supplemental application described in subsection (d) must include a supplemental application that includes the fees and expenses claimed for the submission of that reply.
(d) Supplemental Application.
(1) General. Except as provided in paragraphs (2) or (3) of this subsection and in subsection (c), a party whose application described in subsection (a) has been granted in whole or in part may, not later than 20 days after the Court action granting such application, file a supplemental application for attorney fees and other expenses in connection with the defense of such subsection (a) application.
(2) Appeals to the Federal Circuit. When an action on an application appealed to the United States Court of Appeals for the Federal Circuit is returned to the Court and the application has been granted in whole or in part by any court, any supplemental application (over which the Court has jurisdiction) based on representation provided in that appeal may be filed in the Court not later than 20 days after the mandate is issued by that court. See FED. R. APP. P. 41; FED. CIR. R. 41.
(3) Appeals to the Supreme Court. When an action on an application appealed to the Supreme Court is returned to the Court and the application has been granted in whole or in part by any court, any supplemental application (over which the Court has jurisdiction) based on representation provided in that appeal may be filed in the Court not later than 20 days after the expiration of the time for filing a petition for a rehearing by the Supreme Court. See SUP. CT. R. 45.
(4) Preparation costs. A supplemental application must include the fees and expenses claimed for the submission of that supplemental application.
(5) Timing of supplemental responses and replies. When a supplemental application is filed under paragraph (2) or (3) of this subsection, the Court will issue an order specifying the timing of responses and replies, in order to ensure that all previous applications have been resolved before requiring a response to the next application.
(e) Appendices. The parties must attach as appendices to any pleading filed under this rule those relevant papers that are not already before the Court.
(f) Form, Copies, and Length. All papers filed under this rule must conform to the requirements set forth in Rule 32, except that an application or response may not exceed 20 pages, not counting any appendix containing pages necessary to meet the 28 U.S.C. § 2412 (d) application-content requirements. See also Rule 37 (Contingency Planning).
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