The Court of Appeals for the Federal Circuit reversed and remanded a Court of Federal Claims ruling that denied an application for Equal Access to Justice Act fees on timeliness grounds, because the CFC erroneously concluded the order of the Federal Circuit granting the contractor's motion to voluntarily withdraw its appeal became a "final and not appealable judgment" for purposes of the EAJA application deadline as of the date of entry. The contractor filed its application for EAJA fees 112 days after the Federal Circuit issued its mandate granting the voluntary withdrawal motion. Under the EAJA, an application must be submitted "within thirty days of final judgment," and a "final judgment" is "a judgment that is final and not appealable." A judgment is "not appealable" only after the time for filing an appeal has elapsed (28 USC 2412(d)). The contractor argued to the CFC that its application was timely filed "within thirty days of final judgment" because the Federal Circuit's mandate did not become a "final judgment" until after the 90-day period for filing a petition for a writ of certiorari to the Supreme Court had expired. The CFC rejected the contractor's argument, finding the judgment of the Federal Circuit granting the voluntary dismissal motion was final and not appealable and the deadline for filing an EAJA application was 30 days later. (50 CCF ¶78,641). Although the Supreme Court had ruled the EAJA's filing period starts to accrue only after the time to appeal has expired for all parties (Melkonyan v. Sullivan, 501 US 89 (1991)), it had not addressed the circumstance where a final judgment has been entered as a result of a voluntary dismissal.

The Federal Circuit explained "the regional circuits have generally applied the principle that for EAJA purposes a consent judgment of dismissal is subject to the same appeal accrual rules as other judgments." The First, Third, Ninth, and District of Columbia Circuits have held consent judgments are not "final judgments" for purposes of the EAJA, and have expressed preference for "a uniform rule whereby the time for filing an EAJA request would run from the expiration of the time for appeal, without consideration of whether the particular final judgment would have or could have been appealed." In distinction, the Fifth and Tenth Circuits have adopted a "case by case" or "functional" approach, where they generally find the 30-day EAJA filing period begins to run from the grant of a voluntary motion for dismissal.