MacDonald Miller Company v. National Labor Relations Board

MacDonald Miller Company (Miller) appeals the NLRB’s denial of fees under the Equal Access for Justice Act (EAJA), 5 U.S.C. § 504 . The NLRB denied EAJA fees to Miller on April 21, 1987. Miller filed its petition for review on June 17, 1987. EAJA requires that a dissatisfied party appeal the agency’s decision within thirty days; Miller’s failure to do so precludes jurisdiction in this court. We dismiss for lack of jurisdiction.

I

Since 1986 a party seeking fees and expenses under EAJA has had the right to appeal an adverse agency decision. The statute prescribes jurisdiction as follows:

5 U.S.C. § 504 (c)(2).

This passage waives sovereign immunity. As the Supreme Court said in United States v. Sherwood, 312 U.S. 584, 586 , 61 S.Ct. 767, 769-70 , 85 L.Ed. 1058 (1941) (citations omitted), “The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” The thirty day time limit is a term of the United States’s consent to be sued under EAJA; the time limit is jurisdictional.

The two federal courts of appeals to publish on this issue likewise have…