SCARBOROUGH v. PRINCIPI, SECRETARY OF VETERANS AFFAIRS

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401 OCTOBER TERM, 2003
Syllabus
SCARBOROUGH v. PRINCIPI, SECRETARY OF
VETERANS AFFAIRS
certiorari to the united states court of appeals for
the federal circuit
No. 02–1657. Argued February 23, 2004—Decided May 3, 2004
The Equal Access to Justice Act (EAJA) authorizes the payment of attor-
ney’s fees to a prevailing party in an action against the United States
absent a showing by the Government that its position in the underly-
ing litigation “was substantially justified.” 28 U. S. C. § 2412(d)(1)(A).
Section 2412(d)(1)(B) sets a deadline of 30 days after final judgment for
the filing of a fee application and directs that the application include:
(1) a showing that the applicant is a “prevailing party”; (2) a showing
that the applicant is “eligible to receive an award”; and (3) a statement
of “the amount sought, including an itemized statement from any attor-
ney . . . stating the actual time expended and the rate” charged. Sec-
tion 2412(d)(1)(B)’s second sentence further requires the applicant to
“allege that the position of the United States was not substantially
justified.”
Petitioner Scarborough prevailed before the Court of Appeals for Vet-
erans Claims (CAVC) in an action for disability benefits against respond-
ent Secretary of Veterans Affairs. Scarborough’s counsel filed a timely
application for attorney’s fees and costs pursuant to § 2412(d), showing
that Scarborough was the prevailing party in the underlying litigation
and was eligible to receive an award. Counsel also stated the total
amount sought, and itemized hours and rates of work. But counsel
failed initially to allege, in addition, that “the position of the United
States was not substantially justified.” § 2412(d)(1)(B). The Secretary
moved to dismiss the application on the ground that the CAVC lacked
subject-matter jurisdiction to award fees because Scarborough’s counsel
had failed to make the required no-substantial-justification allegation.
Scarborough’s counsel immediately filed an amended application adding
that allegation. In the interim between the initial filing and the amend-
ment, however, the 30-day fee application filing period had expired.
For that sole reason, the CAVC dismissed Scarborough’s fee application.
In affirming, the Federal Circuit initially held that EAJA plainly and
unambiguously requires a party seeking fees under § 2412(d) to submit
an application, including all enumerated allegations, within the 30-day
time limit. This Court granted certiorari, vacated the judgment, and
remanded the case in light of Edelman v. Lynchburg College, 535 U. S.

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Syllabus
106. In Edelman, the Court had upheld an Equal Employment Oppor-
tunity Commission (EEOC) regulation allowing amendment of an em-
ployment discrimination charge, timely filed under Title VII of the Civil
Rights Act of 1964, to add, after the filing deadline, the required, but
initially absent, verification. Title VII, the Court explained, permitted
“relation back” of a verification missing from an original filing. Id., at
115–118. On remand, the Federal Circuit adhered to its earlier deci-
sion, distinguishing Edelman on the ground that, in Title VII’s remedial
scheme, laypersons often initiate the process, whereas EAJA is directed
to attorneys. The appeals court also observed that the timely filing
and verification requirements at issue in Edelman appear in separate
statutory provisions, while EAJA’s 30-day filing deadline and the con-
tents required for a fee application are detailed in the same statutory
provision. The Federal Circuit also distinguished the holding in Becker
v. Montgomery, 532 U. S. 757, that a pro se litigant’s failure to hand sign
a timely filed notice of appeal is a nonjurisdictional, and therefore cur-
able, defect. This Court had noted in Becker, the Federal Circuit
pointed out, that the timing and signature requirements there at issue
were found in separate rules.
Held: A timely fee application, pursuant to § 2412(d), may be amended
after the 30-day filing period has run to cure an initial failure to allege
that the Government’s position in the underlying litigation lacked sub-
stantial justification. Thus, Scarborough’s fee application, as amended,
qualifies for consideration and determination on the merits. Pp. 413–423.
(a) Whether Scarborough is time barred by § 2412(d)(1)(B) from gain-
ing the fee award authorized by § 2412(d)(1)(A) does not concern the
federal courts’ “subject-matter jurisdiction.” Rather, it concerns a
mode of relief (costs including legal fees) ancillary to the judgment of a
court that has plenary “jurisdiction of [the civil] action” in which the fee
application is made. See §§ 2412(b) and (d)(1)(A); 38 U. S. C. § 7252(a).
More particularly, the current dispute presents a question of time. The
issue is not whether, but when, §§ 2412(d)(1)(A) and (B) require a fee
applicant to “allege that the position of the United States was not sub-
stantially justified.” Clarity would be facilitated if courts and litigants
used the label “jurisdictional” not for such claim-processing rules, but
only for prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within a
court’s adjudicatory authority. Kontrick v. Ryan, 540 U. S. 443, 454–
455. Section 2412(d)(1)(B) does not describe what classes of cases the
CAVC is competent to adjudicate, but relates only to postjudgment pro-
ceedings auxiliary to cases already within that court’s adjudicatory au-
thority. Pp. 413–414.

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Syllabus
(b) Unlike the § 2412(d)(1)(B) prescriptions on what the applicant
must show (his “prevailing party” status, “eligib[ility] to receive an
award,” and “the amount sought, including an itemized statement”), the
required “not substantially justified” allegation imposes no proof burden
on the fee applicant, but is simply an allegation or pleading requirement.
So understood, the applicant’s pleading burden is akin to Becker’s signa-
ture requirement and Edelman’s verification requirement. Like those
requirements, EAJA’s ten-word “not substantially justified” allegation
is a “think twice” prescription that “stem[s] the urge to litigate irrespon-
sibly,” Edelman, 535 U. S., at 116; at the same time, the allegation func-
tions to shift the burden to the Government to prove that its position
in the underlying litigation “was substantially justified,” § 2412(d)(1)(A).
The allegation does not serve an essential notice-giving function; the
Government is aware, from the moment a fee application is filed, that to
defeat the application on the merits, it will have to prove its position
“was substantially justified.” A failure to make the allegation, there-
fore, should not be fatal where no genuine doubt exists about who is
applying for fees, from what judgment, and to which court. Becker,
532 U. S., at 767. Moreover, because Scarborough’s lawyer’s statutory
contingent fee would be reduced dollar for dollar by an EAJA award,
see 38 U. S. C. § 5904(d)(1); Fee Agreements, note following 28 U. S. C.
§ 2412, allowing the curative amendment benefits the complainant di-
rectly, and is not fairly described as simply a boon for his counsel.
The Court rejects the Government’s assertion that the relation-back
regime, as now codified in Federal Rule of Civil Procedure 15(c), is out
of place in this context because that Rule governs “pleadings,” a term
that does not encompass fee applications. In Becker and Edelman, the
Court approved application of the relation-back doctrine to a notice of
appeal and an EEOC discrimination charge, neither of which is a “plead-
ing” under the Federal Rules. Moreover, “relation back” was not an
invention of the federal rulemakers. This Court applied the doctrine
well before the Federal Rules became effective, see, e. g., New York Cen-
tral & Hudson River R. Co. v. Kinney, 260 U. S. 340, 346. Thus, the
relation-back doctrine properly guides the Court’s determination here:
The amended application “arose out of the conduct, transaction, or oc-
currence set forth or attempted to be set forth” in the initial application.
Fed. Rule Civ. Proc. 15(c)(2). Pp. 414–419.
(c) The Court rejects the Government’s argument that § 2412’s waiver
of sovereign immunity from liability for fees is conditioned on the fee
applicant’s meticulous compliance with each and every § 2412(d)(1)(B)
requirement within 30 days of final judgment, including the allegation
that the United States’ position “was not substantially justified.”
Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95, and Franco-

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Opinion of the Court
nia Associates v. United States, 536 U. S. 129, 145—in which the Court
recognized that limitation principles generally apply to the Government
in the same way they apply to private parties—are enlightening on this
issue. The Government asserts unpersuasively that Irwin and Franco-
nia do not bear on this case because § 2412(d) authorizes fee awards
against it under rules that have no analogue in private litigation. Be-
cause many statutes that create claims for relief against the United
States or its agencies apply only to Government defendants, Irwin’s
reasoning would be diminished were it instructive only in situations
with a readily identifiable private-litigation equivalent. In any event,
§ 2412(d) is analogous to federal “prevailing party” fee-shifting statutes
that are applicable to suits between private litigants. Finally, the
Court’s conclusion will not expose the Government to any unfair imposi-
tion. The Government has never argued that it will be prejudiced if
Scarborough’s “not substantially justified” allegation is permitted to re-
late back to his timely filed fee application. Moreover, a showing of
prejudice should preclude operation of the relation-back doctrine in the
first place. EAJA itself also has a built-in check: Section 2412(d)(1)(A)
disallows fees where “special circumstances make an award unjust.”
Pp. 419–423.
319 F. 3d 1346, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ.,
joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined,
post, p. 423.
Brian Wolfman argued the cause for petitioner. With
him on the briefs were Scott L. Nelson, Alan B. Morrison,
and Peter J. Sarda.
Jeffrey P. Minear argued the cause for respondent. On
the brief were Solicitor General Olson, Assistant Attorney
General Keisler, Deputy Solicitor General Clement, Austin
C. Schlick, William Kanter, August E. Flentje, and Tim S.
McClain.
Justice Ginsburg delivered the opinion of the Court.
The Equal Access to Justice Act (EAJA or Act) departs
from the general rule that each party to a lawsuit pays his or
her own legal fees. See Alyeska Pipeline Service Co. v.

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Opinion of the Court
Wilderness Society, 421 U. S. 240, 257 (1975). Relevant
here, EAJA authorizes the payment of fees to a prevail-
ing party in an action against the United States; the Gov-
ernment may defeat this entitlement by showing that its
position in the underlying litigation “was substantially justi-
fied.” 28 U. S. C. § 2412(d)(1)(A). In a further provision,
§ 2412(d)(1)(B), the Act prescribes the timing and content of
applications seeking fees authorized by § 2412(d)(1)(A). Sec-
tion 2412(d)(1)(B) specifies as the time for filing the applica-
tion “within thirty days of final judgment in the action.” In
the same sentence, the provision identifies the application’s
contents, in particular, a showing that the applicant is a “pre-
vailing party” who meets the financial eligibility condition
(in this case, a net worth that “did not exceed $2,000,000 at
the time the . . . action was filed,” § 2412(d)(2)(B)); and a
statement of the amount sought, with an accompanying item-
ization. The fee application instruction adds in the next
sentence: “The [applicant] shall also allege that the position
of the United States was not substantially justified.”
Petitioner Randall C. Scarborough was the prevailing
party in an action against the Department of Veterans Af-
fairs for disability benefits. His counsel filed a timely appli-
cation for fees showing Scarborough’s “eligib[ility] to receive
an award” and “the amount sought, including [the required]
itemized statement.” § 2412(d)(1)(B). But counsel failed
initially to allege, in addition, that “the position of the United
States was not substantially justified.” Pointing to that
omission, the Government moved to dismiss the fee applica-
tion. Scarborough’s counsel immediately filed an amended
application adding that the Government’s opposition to the
underlying claim for benefits “was not substantially justi-
fied.” In the interim between the initial filing and the
amendment, however, the 30-day fee application filing period
had expired. For that sole reason, the United States Court
of Appeals for Veterans Claims granted the Government’s

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Opinion of the Court
motion to dismiss the application and the Federal Circuit af-
firmed that disposition.
Scarborough’s petition for certiorari presents this ques-
tion: May a timely fee application, pursuant to § 2412(d), be
amended after the 30-day filing period has run to cure an
initial failure to allege that the Government’s position in the
underlying litigation lacked substantial justification? We
hold that a curative amendment is permissible and that Scar-
borough’s fee application, as amended, qualifies for consider-
ation and determination on the merits.
I
A
Congress enacted EAJA, Pub. L. 96–481, Tit. II, 94 Stat.
2325, in 1980 “to eliminate the barriers that prohibit small
businesses and individuals from securing vindication of their
rights in civil actions and administrative proceedings brought
by or against the Federal Government.” H. R. Rep. No. 96–
1005, p. 9; see Congressional Findings and Purposes, 94 Stat.
2325, note following 5 U. S. C. § 504 (“It is the purpose of
this title . . . to diminish the deterrent effect of seeking re-
view of, or defending against, governmental action . . . .”).
Among other reforms, EAJA amended 28 U. S. C. § 2412,
which previously had authorized courts to award costs, but
not attorney’s fees and expenses, to prevailing parties in civil
litigation against the United States. EAJA added two
new prescriptions to § 2412 that expressly authorize attor-
ney’s fee awards against the Federal Government. First,
§ 2412(b) made the United States liable for attorney’s fees
and expenses “to the same extent that any other party would
be liable under the common law or under the terms of any
statute which specifically provides for such an award.” Sec-
ond, § 2412(d) rendered the Government liable for a prevail-
ing private party’s attorney’s fees and expenses in cases in
which suit would lie only against the United States or an

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Opinion of the Court
agency of the United States. This case concerns the con-
struction of § 2412(d).
Congress initially adopted § 2412(d) for a trial period of
three years, Pub. L. 96–481, § 204(c); in 1985, Congress sub-
stantially reenacted the measure, this time without a sunset
provision, Pub. L. 99–80, 99 Stat. 183. See id., § 6(b)(2), 99
Stat. 186. Congress’ aim, in converting § 2412(d) from a
temporary measure to a permanent one, was “to ensure that
certain individuals, partnerships, corporations . . . or other
organizations will not be deterred from seeking review of, or
defending against, unjustified governmental action because
of the expense involved.” H. R. Rep. No. 99–120, p. 4.
Section 2412(d) currently provides, in relevant part:
“(d)(1)(A) Except as otherwise specifically provided
by statute, a court shall award to a prevailing party
other than the United States fees and other expenses,
in addition to any costs awarded pursuant to subsection
(a), [1] incurred by that party in any civil action (other
than cases sounding in tort), . . . brought by or against
the United States in any court having jurisdiction of
that action, unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.
“(B) A party seeking an award of fees and other ex-
penses shall, within thirty days of final judgment in the
action, submit to the court an application for fees and
other expenses which shows that the party is a prevail-
ing party and is eligible to receive an award under this
subsection, and the amount sought, including an item-
ized statement from any attorney or expert witness . . .
stating the actual time expended and the rate at which
fees and other expenses were computed. The party
1 Subsection (a) states: “Except as otherwise specifically provided by
statute, a judgment for costs . . . may be awarded to the prevailing party
in any civil action brought by or against the United States . . . in any court
having jurisdiction of such action.” § 2412(a)(1).

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shall also allege that the position of the United States
was not substantially justified.”
Section 2412(d)(1)(A) thus entitles a prevailing party to fees
absent a showing by the Government that its position in
the underlying litigation “was substantially justified,” while
§ 2412(d)(1)(B) sets a deadline of 30 days after final judgment
for the filing of a fee application and directs that the applica-
tion shall include: (1) a showing that the applicant is a pre-
vailing party; (2) a showing that the applicant is eligible to
receive an award (in Scarborough’s case, that the applicant’s
“net worth did not exceed $2,000,000 at the time the civil
action was filed,” § 2412(d)(2)(B)); and (3) a statement of the
amount sought together with an itemized account of time
expended and rates charged. The second sentence of
§ 2412(d)(1)(B) adds a fourth instruction, requiring the appli-
cant simply to “allege” that the position of the United States
was not substantially justified.
B
On July 9, 1999, petitioner Scarborough, a United States
Navy veteran, prevailed before the Court of Appeals for Vet-
erans Claims (CAVC) on a claim for disability benefits.
App. to Pet. for Cert. 41a–44a. Eleven days later, Scarbor-
ough’s counsel applied, on Scarborough’s behalf, for attor-
ney’s fees and costs pursuant to § 2412(d). App. 4–5. Scar-
borough himself would gain from any fee recovery because
his lawyer’s statutory contingent fee, ordinarily 20% of the
veteran’s past-due benefits, 38 U. S. C. § 5904(d)(1), would be
reduced dollar for dollar by an EAJA award. See Federal
Courts Administration Act of 1992, 106 Stat. 4513, Fee
Agreements, note following 28 U. S. C. § 2412; Tr. of Oral
Arg. 6.2
2 The same reduction applies in Social Security cases, see Pub. L. 99–80,
§ 3, 99 Stat. 186, which account for the large majority of EAJA awards.
L. Mecham, Annual Report of the Director of the Administrative Office of
the United States Courts 35–37 (1990).

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Opinion of the Court
The Clerk of the CAVC returned Scarborough’s initial fee
application on the ground that it was filed too soon. App.
6–7. After the CAVC issued a judgment noting that the
time for filing postdecision motions had expired, Scarbor-
ough’s counsel filed a second EAJA application (the one at
issue here) setting forth, as did the first application, that
Scarborough was the prevailing party in the underlying liti-
gation; that his net worth did not exceed $2 million; and a
description of work counsel performed for Scarborough since
counsel’s retention in August 1998. Id., at 8–9. The appli-
cation requested $19,333.75 in attorney’s fees and $117.80 in
costs. Id., at 9. Scarborough’s applications, both the first
and the second, failed to allege “that the position of the
United States [in the underlying litigation] was not sub-
stantially justified,” § 2412(d)(1)(B). In all other respects,
it is not here disputed, Scarborough’s filings met the
§ 2412(d)(1)(B) application-content requirements.
Again, the Clerk of the CAVC found the application pre-
mature, but this time retained it, unfiled, until the time to
appeal the CAVC’s judgment had expired. The Clerk then
filed the fee application and notified the respondent Secre-
tary of Veterans Affairs that his response was due within 30
days. Id., at 10. After receiving and exhausting a 30-day
extension of time to respond, the Secretary moved to dismiss
the fee application. Id., at 2. The CAVC lacked subject-
matter jurisdiction to award fees under § 2412(d), the Secre-
tary maintained, because Scarborough’s counsel had failed to
allege, within 30 days of the final judgment, “that the posi-
tion of the United States was not substantially justified,”
§ 2412(d)(1)(B). CAVC Record, Doc. 12, pp. 4–5.
Scarborough’s counsel promptly filed an amendment to the
fee application, stating in a new paragraph that “the govern-
ment’s defense of the Appellant’s claim was not substantially
justified.” App. 11. Simultaneously, Scarborough opposed
the Secretary’s motion to dismiss, urging that the omission
initially to plead “no substantial justification” could be cured

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by amendment and was not a jurisdictional defect. CAVC
Record, Doc. 13, pp. 1–2. On June 14, 2000, the CAVC dis-
missed Scarborough’s fee application on the ground asserted
by the Government. Scarborough v. West, 13 Vet. App. 530
(per curiam).
A year-and-a-half later, the Court of Appeals for the Fed-
eral Circuit affirmed. 273 F. 3d 1087 (2001). EAJA must
be construed strictly in favor of the Government, the Court
of Appeals stated, because the Act effects a partial waiver
of sovereign immunity, rendering the United States liable for
attorney’s fees when the Government otherwise would not
be required to pay. Id., at 1089–1090. In the court’s view,
“[t]he language of the EAJA statute is plain and unam-
biguous”; it requires a party seeking fees under § 2412(d)
to submit an application, including all enumerated alle-
gations, within the 30-day time limit. Id., at 1090 (citing
§ 2412(d)(1)(B)). The court acknowledged that the Courts
of Appeals for the Third and Eleventh Circuits read
§ 2412(d)(1)(B) to require only that the fee application be filed
within 30 days; those Circuits allow later amendments to
perfect the application-content specifications set out in
§ 2412(d)(1)(B). Id., at 1090–1091 (citing Dunn v. United
States, 775 F. 2d 99, 104 (CA3 1985) (applicant need not sub-
mit within 30 days an itemized statement accounting for the
amount sought), and Singleton v. Apfel, 231 F. 3d 853, 858
(CA11 2000) (applicant need not allege within 30 days that
her net worth did not exceed $2 million or that the Govern-
ment’s position was not substantially justified)).
The Federal Circuit also distinguished its own decision in
Bazalo v. West, 150 F. 3d 1380 (1998), which had held that
an applicant may supplement an EAJA application to cure
an initial failure to show eligibility for fees. The applicant
in Bazalo had failed to allege and establish, within the
30-day period, that he was a qualified “party” within the
meaning of § 2412(d), i. e., that his “net worth did not ex-
ceed $2,000,000 at the time the civil action was filed,”

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§ 2412(d)(2)(B). Id., at 1381. Bazalo differed from Scarbor-
ough’s case, the Court of Appeals said, because the Bazalo
applicant had essentially complied with the basic pleading
requirements and simply needed to “fles[h] out . . . the de-
tails.” 273 F. 3d, at 1092.
We granted Scarborough’s initial petition for a writ of cer-
tiorari, vacated the judgment of the Court of Appeals, and
remanded the case in light of this Court’s decision in Edel-
man v. Lynchburg College, 535 U. S. 106 (2002). See 536
U. S. 920 (2002). Edelman concerned an Equal Employment
Opportunity Commission (EEOC) regulation relating to
Title VII of the Civil Rights Act of 1964; the regulation al-
lowed amendment of an employment discrimination charge,
timely filed with the EEOC, to add, after the filing deadline
had passed, the required, but initially absent, verification.
See 42 U. S. C. § 2000e–5(b) (requiring charges to “be in writ-
ing under oath or affirmation”). We upheld the regulation.
Title VII, we explained, in line with “a long history of prac-
tice,” 535 U. S., at 116, permitted “relation back” of a verifi-
cation missing from an original filing, id., at 115–118.
On remand of Scarborough’s case to the same Federal Cir-
cuit panel, two of the three judges adhered to the panel’s
unanimous earlier decision and distinguished Edelman. 319
F. 3d 1346 (2003). Unlike the civil rights statute in Edel-
man, the Court of Appeals majority said, a “remedial
scheme” in which laypersons often initiate the process,
EAJA is directed to attorneys, who do not need “paternalis-
tic protection.” 319 F. 3d, at 1353 (internal quotation marks
omitted). The Federal Circuit’s majority further observed
that the two requirements at issue in Edelman—the timely
filing of a discrimination charge and the verification of that
charge—appear in separate statutory provisions. In con-
trast, EAJA’s 30-day filing deadline and the contents re-
quired for a fee application are detailed in the same statutory
provision. 319 F. 3d, at 1353. The majority also distin-
guished Becker v. Montgomery, 532 U. S. 757 (2001), in which

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we held that a pro se litigant’s failure to hand sign a timely
filed notice of appeal is a nonjurisdictional, and therefore cur-
able, defect. This Court had noted in Becker, the Federal
Circuit majority pointed out, that the timing and signature
requirements there at issue were found in separate rules.
See 319 F. 3d, at 1353. The Federal Circuit’s opinion next
distinguished Edelman’s verification requirement and Beck-
er’s signature requirement from EAJA’s no-substantial-
justification-allegation requirement on this additional
ground: “[The] . . . substantial justification [allegation] is not
a pro forma requirement,” for it “requires an applicant to
analyze the case record” and “is one portion of the basis of
the award itself.” 319 F. 3d, at 1353. Reiterating that the
no-substantial-justification allegation is “jurisdictional,” the
Federal Circuit held that Scarborough’s “[n]oncompliance
[was] fatal” and dismissed the application. Id., at 1355.
Chief Judge Mayer dissented. The no-substantial-
justification allegation, he found, “is akin to the verification
requirement of Edelman and the signature requirement of
Becker.” Id., at 1356. In addition to the pathmarking
Edelman and Becker decisions, he regarded this case as
“substantially the same case as Bazalo.” 319 F. 3d, at 1356.
In light of EAJA’s purpose “to eliminate the financial disin-
centive for those who would defend against unjustified gov-
ernmental action and thereby deter it,” Chief Judge Mayer
concluded, “it is apparent that Congress did not intend the
EAJA application process to be an additional deterrent to
the vindication of rights because of a missing averment.”
Ibid.
We granted certiorari, 539 U. S. 986 (2003), in view of the
division of opinion among the Circuits on the question
whether an EAJA application may be amended, outside the
30-day period, to allege that the Government’s position in the
underlying litigation was not substantially justified, compare
Singleton, 231 F. 3d 853, with 319 F. 3d 1346. We now re-
verse the judgment of the Court of Appeals.

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II
A
We clarify, first, that the question before us—whether
Scarborough is time barred by § 2412(d)(1)(B) from gain-
ing the fee award authorized by § 2412(d)(1)(A)—does not
concern the federal courts’ “subject-matter jurisdiction.”
Rather, it concerns a mode of relief (costs including legal
fees) ancillary to the judgment of a court that has plenary
“jurisdiction of [the civil] action” in which the fee application
is made. See §§ 2412(b) and (d)(1)(A) (costs including fees
awardable “in any civil action” brought against the United
States “in any court having jurisdiction of [that] action”); 38
U. S. C. § 7252(a) (“The Court of Appeals for Veterans Claims
shall have exclusive jurisdiction to review decisions of the
Board of Veterans’ Appeals.”).3 More particularly, the cur-
rent dispute between Scarborough and the Government pre-
sents a question of time. The issue is not whether, but
when, §§ 2412(d)(1)(A) and (B) require a fee applicant to “al-
lege that the position of the United States was not substan-
tially justified.” As we recently observed:
“Courts, including this Court, . . . have more than oc-
casionally [mis]used the term ‘jurisdictional’ to describe
emphatic time prescriptions in [claim processing]
rules . . . . Classifying time prescriptions, even rigid
ones, under the heading ‘subject matter jurisdiction’ can
be confounding. Clarity would be facilitated if courts
and litigants used the label ‘jurisdictional’ not for claim-
processing rules, but only for prescriptions delineating
3 Scarborough had already invoked the CAVC’s exclusive jurisdiction—
by appealing the Board of Veterans’ Appeals’ July 1998 decision denying
his claim for disability benefits—well before he applied for fees; this distin-
guishes his case from Torres v. Oakland Scavenger Co., 487 U. S. 312
(1988), on which the Government relies. See Brief for Respondent 11, 20,
n. 3. Torres involved the omission of required content (each applicant’s
name) in a notice of appeal, the filing that triggers appellate-court jurisdic-
tion over the case. See 487 U. S., at 315, 317.

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the classes of cases (subject-matter jurisdiction) and the
persons (personal jurisdiction) falling within a court’s
adjudicatory authority.” Kontrick v. Ryan, 540 U. S.
443, 454–455 (2004) (citation, some internal quotation
marks, and brackets omitted).
In short, § 2412(d)(1)(B) does not describe what “classes of
cases,” id., at 455, the CAVC is competent to adjudicate;
instead, the section relates only to postjudgment proceed-
ings auxiliary to cases already within that court’s adjudi-
catory authority. Accordingly, as Kontrick indicates, the
provision’s 30-day deadline for fee applications and its
application-content specifications are not properly typed
“jurisdictional.”
B
We turn next to the reason why Congress required the
fee applicant to “allege” that the Government’s position “was
not substantially justified,” § 2412(d)(1)(B). 4 Unlike the
§ 2412(d)(1)(B) prescriptions on what the applicant must show
(his “prevailing party” status and “eligib[ility] to receive an
award,” and “the amount sought, including an itemized state-
ment” reporting “the actual time expended and the rate at
which fees and other expenses were computed”), the re-
quired “not substantially justified” allegation imposes no
proof burden on the fee applicant. It is, as its text conveys,
nothing more than an allegation or pleading requirement.
The burden of establishing “that the position of the United
States was substantially justified,” § 2412(d)(1)(A) indicates
and courts uniformly have recognized, must be shouldered
by the Government. See, e. g., Pierce v. Underwood, 487
4 All agree that § 2412(d)(1)(B) requires a fee applicant to allege that the
Government’s position “was not substantially justified.” In this regard,
the dissent sees fire where there is no flame. The guides the dissent sets
out, post, at 424–425, nn. 2 and 3—court rules and agency regulations—
address only what the applicant must plead, not the question of time pre-
sented here.

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U. S. 552, 567 (1988); id., at 575 (Brennan, J., concurring in
part and concurring in judgment); Davidson v. Veneman, 317
F. 3d 503, 506 (CA5 2003); Lauer v. Barnhart, 321 F. 3d 762,
764 (CA8 2003); Libas, Ltd. v. United States, 314 F. 3d 1362,
1365 (CA Fed. 2003). See also H. R. Rep. No. 96–1005, at 10
(“[T]he strong deterrents to contesting Government action
that currently exis[t] require that the burden of proof rest
with the Government.”).
Congress did not, however, want the “substantially justi-
fied” standard to “be read to raise a presumption that the
Government position was not substantially justified simply
because it lost the case . . . .” Ibid. By allocating the bur-
den of pleading “that the position of the United States was
not substantially justified”—and that burden only—to the fee
applicant, Congress apparently sought to dispel any assump-
tion that the Government must pay fees each time it loses.
Complementarily, the no-substantial-justification-allegation
requirement serves to ward off irresponsible litigation, i. e.,
unreasonable or capricious fee-shifting demands. As coun-
sel for the Government stated at oral argument, allocating
the pleading burden to fee applicants obliges them “to exam-
ine the Government’s position and make a determination . . .
whether it is substantially justified or not.” Tr. of Oral Arg.
31; see id., at 19 (petitioner recognizes that “the purpose
of this allegation [is to make] a lawyer think twice”). So
understood, the applicant’s burden to plead that the Govern-
ment’s position “was not substantially justified” is akin to the
signature requirement in Becker and the oath or affirmation
requirement in Edelman.
In Becker, a pro se litigant had typed, but had neglected
to hand sign, his name, as required by Federal Rule of Civil
Procedure 11(a), on his timely filed notice of appeal. 532
U. S., at 760–761, 763; see supra, at 411–412. Although we
called the rules on the timing and content of notices of appeal
“linked jurisdictional provisions,” Becker, 532 U. S., at 765
(referring to Fed. Rules App. Proc. 3 and 4), we concluded

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416 SCARBOROUGH v. PRINCIPI
Opinion of the Court
that a litigant could add the signature required by Rule 11(a)
even after the time for filing the notice had expired, 532
U. S., at 766–767. Rule 11(a), we observed, provides that
“omission of the signature” on any “pleading, written motion,
[or] other paper” may be “corrected promptly after being
called to the attention of the attorney or party.” See 532
U. S., at 764. Permitting a late signature to perfect an ap-
peal, we explained, was hardly pathbreaking, for “[o]ther
opinions of this Court are in full harmony with the view that
imperfections in noticing an appeal should not be fatal where
no genuine doubt exists about who is appealing, from what
judgment, to which appellate court.” Id., at 767–768 (citing
Smith v. Barry, 502 U. S. 244, 245, 248–249 (1992), and
Foman v. Davis, 371 U. S. 178, 181 (1962)).
The next Term, in Edelman, we described our decision in
Becker as having allowed “relation back” of the late signa-
ture to the timely filed notice of appeal. 535 U. S., at 116.
Edelman involved an EEOC regulation permitting a Title
VII discrimination charge timely filed with the agency to
be amended, outside the charge-filing period, to include an
omitted, but required, verification. Id., at 109; see supra,
at 411. “There is no reason,” we observed in sustaining the
regulation, “to think that relation back of the oath here is
any less reasonable than relation back of the signature in
Becker. Both are aimed at stemming the urge to litigate
irresponsibly . . . .” 535 U. S., at 116.
Becker and Edelman inform our judgment in this case.
Like the signature and verification requirements, EAJA’s
ten-word “not substantially justified” allegation is a “think
twice” prescription that “stem[s] the urge to litigate irre-
sponsibly,” Edelman, 535 U. S., at 116; at the same time, the
allegation functions to shift the burden to the Government
to prove that its position in the underlying litigation “was
substantially justified,” § 2412(d)(1)(A). We note, too, that
the allegation does not serve an essential notice-giving func-
tion; the Government is aware, from the moment a fee appli-

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Opinion of the Court
cation is filed, that to defeat the application on the merits, it
will have to prove its position “was substantially justified.”
As Becker indicates, the lapse here “should not be fatal
where no genuine doubt exists about who is app[lying] [for
fees], from what judgment, to which . . . court.” 532 U. S.,
at 767. Moreover, because Scarborough’s lawyer’s statutory
contingent fee would be reduced dollar for dollar by an
EAJA award, see 38 U. S. C. § 5904(d)(1); Fee Agreements,
note following 28 U. S. C. § 2412, allowing the curative
amendment benefits the complainant directly, and is not
fairly described as simply a boon for his counsel. Permit-
ting amendment thus advances Congress’ purpose, in enact-
ing EAJA, to reduce the “emphasi[s], virtually to the exclu-
sion of all other issues, [on] the cost of potential litigation” in
a party’s decision whether to challenge unjust governmental
action. H. R. Rep. No. 96–1005, at 7.
The Government, however, maintains that the relation-
back regime, as now codified in Rule 15(c) of the Federal
Rules of Civil Procedure, is out of place in this context, for
that Rule governs “pleadings,” a term that does not encom-
pass fee applications. Brief for Respondent 21; see Fed.
Rule Civ. Proc. 15(c)(2) (permitting relation back of amend-
ments to pleadings when “the claim or defense asserted in
the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original [timely filed] pleading”). See also Rule 7(a) (enu-
merating permitted “pleadings”). Scarborough acknowl-
edges that Rule 15(c) itself is directed to federal district
court “pleadings,” but urges that this Court has approved
application of the relation-back doctrine in analogous set-
tings. Brief for Petitioner 28. Most recently, as just re-
lated, we applied the doctrine in Becker and Edelman to,
respectively, a notice of appeal and an EEOC discrimination
charge, neither of which is a “pleading” under the Federal
Rules. As the Government concedes, moreover, see Tr. of
Oral Arg. 35–36, “relation back” was not an invention of the

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418 SCARBOROUGH v. PRINCIPI
Opinion of the Court
federal rulemakers. We applied the doctrine well before
1938, the year the Federal Rules became effective. See,
e. g., New York Central & Hudson River R. Co. v. Kinney,
260 U. S. 340, 346 (1922); Seaboard Air Line R. Co. v. Renn,
241 U. S. 290, 293–294 (1916); Missouri, K. & T. R. Co. v.
Wulf, 226 U. S. 570, 575–576 (1913). With a view to then-
existing practice, the original Rules Advisory Committee de-
scribed “relation back” as “a well recognized doctrine.” Ad-
visory Committee’s 1937 Note on Subd. (c) of Fed. Rule Civ.
Proc. 15, 28 U. S. C. App., p. 686. Commentators have ob-
served that the doctrine Rule 15(c) embraces “has its roots
in the former federal equity practice and a number of state
codes.” 6A C. Wright, A. Miller, & M. Kane, Federal Prac-
tice and Procedure § 1496, p. 64 (2d ed. 1990).5
The relation-back doctrine, we accordingly hold, properly
guides our determination that Scarborough’s fee application
could be amended, after the 30-day filing period, to include
the “not substantially justified” allegation: The amended ap-
plication “arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth” in the initial applica-
5 See, e. g., Fed. Equity Rule 19 (1912) (“The court may at any time, in
furtherance of justice, upon such terms as may be just, permit any process,
proceeding, pleading or record to be amended, or material supplemental
matter to be set forth in an amended or supplemental pleading. The
court, at every stage of the proceeding, must disregard any error or defect
in the proceeding which does not affect the substantial rights of the par-
ties.”); Ill. Rev. Stat., ch. 110, §§ 170(1)–(2) (Smith-Hurd 1935) (“At any time
before final judgment in a civil action, amendments may be allowed . . . in
any process, pleading or proceedings . . . . The cause of action, cross
demand or defense set up in any amended pleading shall not be barred by,
lapse of time . . . if the time prescribed or limited had not expired when
the original pleading was filed, and if . . . the amended pleading grew out
of the same transaction or occurrence set up in the original pleading . . . .”);
2 Wash. Rev. Stat. § 308–3(4) (Remington 1932) (“A cause of action which
would not have been barred by the statute of limitations if stated in the
original complaint or counterclaim shall not be so barred if introduced by
amendment at any later stage of the action, if the adverse party was fairly
apprised of its nature by the original pleading . . . .”).

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Opinion of the Court
tion. Fed. Rule Civ. Proc. 15(c)(2). Just as failure initially
to verify a charge or sign a “pleading, written motion, [or]
other paper,” Fed. Rule Civ. Proc. 11(a), was not fatal to the
petitioners’ cases in Edelman and Becker, so here, counsel’s
initial omission of the assertion that the Government’s posi-
tion lacked substantial justification is not beyond repair.6
C
The Government insists most strenuously that § 2412’s
waiver of sovereign immunity from liability for fees is condi-
6 Scarborough also urges that, regardless of the availability of “relation
back,” § 2412(d)(1)(B)’s 30-day deadline does not apply to the no-
substantial-justification-allegation requirement. Brief for Petitioner 36–
39. In support, Scarborough points out that Congress easily could have
placed the allegation requirement in the first sentence of § 2412(d)(1)(B),
together with the 30-day deadline and the other application-content speci-
fications. Congress’ decision, instead, to set forth the allegation require-
ment in a separate, second sentence, which contains no time limitation,
Scarborough asserts, is significant. Id., at 39. Moreover, Scarborough
contends, the fact that § 2412(d)(1)(B)’s second sentence is structured dif-
ferently from the section’s first sentence (requiring the “party” to “allege,”
rather than directing “the application” to “sho[w]”) further indicates that
Congress viewed the “not substantially justified” allegation as separate
from the fee application’s requirements more closely linked to the filing
deadline. Id., at 38. We do not think that this question, as the Govern-
ment suggests, was answered in Commissioner, INS v. Jean, 496 U. S. 154
(1990). See Brief for Respondent 15, 24; Tr. of Oral Arg. 28, 45. In Jean,
we held that a party who prevails in fee litigation under EAJA may re-
cover fees for legal services rendered during the fee litigation even if some
of the Government’s positions regarding the proper fee were “substan-
tially justified,” i. e., the district court need not make a second finding of
no substantial justification before awarding fees for the fee contest itself.
496 U. S., at 160–162. The sentence in Jean on which the Government
relies, stating that “[a] fee application must contain an allegation ‘that the
position of the United States was not substantially justified,’ ” id., at 160,
like Jean’s holding, did not concern the timing question we here confront.
In any event, because our decision rests on the applicability of the
relation-back doctrine, we do not further explore the debatable question
whether § 2412(d)(1)(B)’s 30-day deadline even applies to the “not substan-
tially justified” allegation requirement.

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420 SCARBOROUGH v. PRINCIPI
Opinion of the Court
tioned on the fee applicant’s meticulous compliance with each
and every requirement of § 2412(d)(1)(B) within 30 days of
final judgment. Brief for Respondent 18–19; Tr. of Oral
Arg. 28, 31; see Ardestani v. INS, 502 U. S. 129, 137 (1991)
(“EAJA renders the United States liable for attorney’s fees
for which it would otherwise not be liable, and thus amounts
to a partial waiver of sovereign immunity.”). In the Gov-
ernment’s view, a failure to allege that the position of the
United States “was not substantially justified” before the
30-day clock has run is as fatal as an omission of any other
§ 2412(d)(1)(B) specification. Brief for Respondent 15; Tr. of
Oral Arg. 45.7
We observe, first, that the Federal Circuit’s reading of
§ 2412(d)(1)(B) is not as unyielding as the Government’s. In-
deed, the Federal Circuit has held that a fee application may
be amended, out of time, to show that the applicant “is eligi-
ble to receive an award,” § 2412(d)(1)(B). See Bazalo, 150
F. 3d, at 1383–1384 (amendment made after 30-day filing pe-
riod cured failure initially to establish that fee applicant’s net
worth did not exceed $2 million). As earlier noted, see
supra, at 412, the dissenting judge in Scarborough’s case
found Bazalo indistinguishable. 319 F. 3d, at 1355–1356
(opinion of Mayer, C. J.).
Our decisions in Irwin v. Department of Veterans Affairs,
498 U. S. 89 (1990), and Franconia Associates v. United
States, 536 U. S. 129 (2002), are enlightening on this issue.
Irwin involved an untimely filed Title VII employment dis-
crimination complaint against the Government. Although
the petitioner had missed the filing deadline, we held that
Title VII’s statutory time limits are subject to equitable
7 The question whether a fee application may be amended after the 30-
day filing period to cure an initial failure to make the “show[ings]” set
forth in the first sentence of § 2412(d)(1)(B) is not before us. We offer no
view on the applicability of “relation back” in that situation.

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Opinion of the Court
tolling, even against the Government. 498 U. S., at 95.8
Similarly, in Franconia, we rejected an “unduly restrictive”
construction of the statute of limitations for claims filed
against the United States under the Tucker Act, 28 U. S. C.
§ 1491. See 536 U. S., at 145 (internal quotation marks and
brackets omitted); ibid. (refusing to adopt “special accrual
rule” for commencement of limitations period against the
Government).
In those decisions, we recognized that “limitations princi-
ples should generally apply to the Government ‘in the same
way that’ they apply to private parties.” Ibid. (quoting
Irwin, 498 U. S., at 95). Once Congress waives sovereign
immunity, we observed, judicial application of a time pre-
scription to suits against the Government, in the same way
the prescription is applicable to private suits, “amounts
to little, if any, broadening of the congressional waiver.”
Irwin, 498 U. S., at 95. We further stated in Irwin that
holding the Government responsible “is likely to be a realis-
tic assessment of legislative intent as well as a practically
useful principle of interpretation.” Ibid.9
The Government nevertheless maintains that Irwin and
Franconia do not bear on this case, for “[§] 2412(d) author-
8 Although we held that equitable tolling could be applied in Title VII
claims against the Government, we further determined that the doctrine’s
requirements were not met on the specific facts of Irwin. The Irwin peti-
tioner’s excuse for the late complaint—his lawyer’s absence from the office
when the EEOC notice that triggered the complaint-filing deadline was
received—ranked “at best [as] a garden variety claim of excusable ne-
glect.” 498 U. S., at 96. In this case, we note, the Government exten-
sively argues against recourse to Irwin’s “rebuttable presumption” that
equitable tolling is available in litigation Congress has authorized against
the United States. Id., at 95; see Brief for Respondent 32–41. Because
our decision rests on other grounds, we express no opinion on the applica-
bility of equitable tolling in the circumstances here presented.
9 Indeed, in enacting EAJA, Congress expressed its belief that “at a
minimum, the United States should be held to the same standards in liti-
gating as private parties.” H. R. Rep. No. 96–1418, p. 9 (1980).

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Opinion of the Court
izes fee awards against the government under rules that
have no analogue in private litigation.” Brief for Respond-
ent 39. But it is hardly clear that Irwin demands a precise
private analogue. Litigation against the United States ex-
ists because Congress has enacted legislation creating rights
against the Government, often in matters peculiar to the
Government’s engagements with private persons—matters
such as the administration of benefit programs. Because
many statutes that create claims for relief against the United
States or its agencies apply only to Government defendants,
Irwin’s reasoning would be diminished were it instruc-
tive only in situations with a readily identifiable private-
litigation equivalent.
In any event, § 2412(d) is analogous to other fee-shifting
provisions abrogating the general rule that each party to a
lawsuit pays his own legal fees. The provision resembles
“prevailing party” fee-shifting statutes that are applicable
to suits between private litigants. See, e. g., 15 U. S. C.
§ 1692k(a)(3) (Fair Debt Collection Practices Act); 29 U. S. C.
§ 2617(a)(3) (Family and Medical Leave Act of 1993); 42
U. S. C. § 2000e–5(k) (Title VII); cf. Franconia, 536 U. S., at
145 (comparing Tucker Act statute of limitations to “contem-
poraneous state statutes of limitations applicable to suits be-
tween private parties [that] also tie the commencement of
the limitations period to the date a claim ‘first accrues’ ”).
We note, finally, that the Government has never argued
that it will be prejudiced if Scarborough’s “not substantially
justified” allegation is permitted to relate back to his timely
filed fee application. Moreover, a showing of prejudice
should preclude operation of the relation-back doctrine in the
first place. See Singleton, 231 F. 3d, at 858 (“The interests
of the government and the courts will be served, however,
if district courts are empowered to . . . outright deny a re-
quest to supplement [a fee application] if the government
would be prejudiced.”). In addition, EAJA itself has a
built-in check: Section 2412(d)(1)(A) disallows fees where

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423 Cite as: 541 U. S. 401 (2004)
Thomas, J., dissenting
“special circumstances make an award unjust.” See H. R.
Rep. No. 96–1418, p. 11 (1980) (§ 2412(d)(1)(A)’s “safety valve”
gives “the court discretion to deny awards where equitable
considerations dictate an award should not be made”). Our
conclusion that a timely filed EAJA fee application may
be amended, out of time, to allege “that the position of
the United St ates was not subst antia l ly justified,”
§ 2412(d)(1)(B), therefore will not expose the Government to
any unfair imposition.
* * *
For the reasons stated, the judgment of the Court of Ap-
peals for the Federal Circuit is reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins,
dissenting.
Without deciding that the statutorily mandated 30-day
deadline “even applies to the ‘not substantially justified’ alle-
gation requirement,” ante, at 419, n. 6, the Court, nonethe-
less, applies the relation-back doctrine to cure the omitted
no-substantial-justification allegation in petitioner’s Equal
Access to Justice Act (EAJA) fee application. The Court
should have first addressed whether, as a textual matter, the
no-substantial-justification allegation must be made within
the 30-day deadline. I conclude that it must. The ques-
tion then becomes whether the judicial application of the
relation-back doctrine is appropriate in a case such as this
where the statute defines the scope of the Government’s
waiver of sovereign immunity. Because there is no express
allowance for relation back in EAJA, I conclude that the sov-
ereign immunity canon applies to construe strictly the scope
of the Government’s waiver. The Court reaches its holding
today by distorting the scope of Irwin v. Department of Vet-

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424 SCARBOROUGH v. PRINCIPI
Thomas, J., dissenting
erans Affairs, 498 U. S. 89 (1990), and by eviscerating that
case’s doctrinal underpinnings.
I
In my view, the better reading of the text of the statute
is that the 30-day deadline applies to the no-substantial-
justification-allegation requirement. The first sentence of
28 U. S. C. § 2412(d)(1)(B) states that “[a] party seeking an
award of fees and other expenses shall, within thirty days of
final judgment in the action, submit to the court an applica-
tion for fees . . . which shows”: (1) the applicant’s status as a
prevailing party; (2) that the applicant is eligible to receive
fees under § 2412(d)(2)(B); and (3) the itemized amount
sought. The second sentence of § 2412(d)(1)(B) provides:
“The party shall also allege that the position of the United
States was not substantially justified.” Ibid. In stating
that the applicant “shall also” make the no-substantial-
justification allegation, the second sentence links the allega-
tion requirement with the timing and other content require-
ments of the first sentence.1 Indeed, there is only one
deadline expressly contained in the provision. That 30-
day deadline imposes a limitation on a set of requirements
that petitioner must satisfy in order to receive an EAJA
fee award. Immediately following the deadline is another
sentence that requires the petitioner to make the no-
substantial-justification allegation. Taking the provision as
a whole, it is quite natural to read it as applying the 30-day
deadline to all of its requirements.2 And, this reading is
1 “Also” is defined as “likewise,” Webster’s Ninth New Collegiate Dic-
tionary 75 (1991), or “in like manner,” Black’s Law Dictionary 77 (6th
ed. 1990).
2 Several Courts of Appeals explicitly require an applicant to include the
no-substantial-justification allegation in an EAJA fee application. See
Federal Court of Appeals Manual: Local Rules 344–345 (West 2004) (CA2
“Local Form for EAJA Fee Application”); id., at 1474–1475 (CA Fed. form
“Application for Fees and Other Expenses Under the [EAJA]”); id., at
244–245 (CA1 Rule 39(a)(2)(D) (2004) (“The application shall . . . identify

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425 Cite as: 541 U. S. 401 (2004)
Thomas, J., dissenting
confirmed by numerous federal agency regulations,3 which
have interpreted a nearly identical EAJA provision allowing
for fees in adversary adjudications conducted before federal
agencies.4
II
Because I conclude that the no-substantial-justification al-
legation must be made within the 30-day deadline, the ques-
the specific position of the United States that the party alleges was not
substantially justified”)); id., at 699 (CA5 Rule 47.8.2(a) (2004) (“The appli-
cation . . . must identify the position of the United States or an agency
thereof that the applicant alleges was not substantially justified”)); id., at
1103 (CA9 Rule 39–2.1 (2004) (“The application . . . shall identify the posi-
tion of the United States Government or an agency thereof in the proceed-
ing that the applicant alleges was not substantially justified”)).
3 See, e. g., 49 CFR § 6.17(a) (2003) (“The application shall . . . identify
the position of an agency or agencies in the proceeding that the applicant
alleges was not substantially justified”); 40 CFR § 17.11(a) (2003) (“The
application shall . . . identify the position of [the Environmental Protection
Agency] in the proceeding that the applicant alleges was not substantially
justified”); 15 CFR § 18.11(a) (2003) (“The application shall . . . identify the
position of the Department [of Commerce] . . . that the applicant alleges
was not substantially justified”); 34 CFR § 21.31 (2003) (“In its application
for an award of fees and other expenses, an applicant shall include . . .
[a]n allegation that the position of the Department [of Education] was not
substantially justified, including a description of the specific position”); 24
CFR § 14.200(a) (2003) (“An application for an award of fees and expenses
under the Act shall . . . identify the position of the Department [of Housing
and Urban Development] or other agencies that the applicant alleges was
not substantially justified”); 39 CFR § 960.9(a) (2003) (“The application
shall . . . identify the position of the Postal Service in the proceeding that
the applicant alleges was not substantially justified”).
4 See 5 U. S. C. § 504(a)(2) (“A party seeking an award of fees and other
expenses shall, within thirty 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, and the amount sought, including an itemized statement from any
attorney, agent, or expert witness representing or appearing in behalf of
the party stating the actual time expended and the rate at which fees
and other expenses were computed. The party shall also allege that the
position of the agency was not substantially justified”).

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426 SCARBOROUGH v. PRINCIPI
Thomas, J., dissenting
tion becomes whether the relation-back doctrine should
apply here. The EAJA requirement for filing a timely fee
application with the statutorily prescribed content is a condi-
tion on the United States’ waiver of sovereign immunity in
§ 2412(d)(1)(A). See Ardestani v. INS, 502 U. S. 129, 137
(1991). As such, the scope of the waiver must be strictly
construed. See, e. g., Irwin, 498 U. S., at 94; United States
v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (stating that a
waiver of sovereign immunity “must be construed strictly in
favor of the sovereign” and “not enlarge[d] . . . beyond what
the language requires” (internal quotation marks omitted));
Library of Congress v. Shaw, 478 U. S. 310, 318 (1986) (same);
Lehman v. Nakshian, 453 U. S. 156, 161 (1981) (“[L]imita-
tions and conditions upon which the Government consents to
be sued must be strictly observed and exceptions thereto
are not to be implied” (internal quotation marks omitted)).
Since the relation-back doctrine relied upon by the Court is
not present in the text of the statute, under a simple appli-
cation of the sovereign immunity canon, petitioner is not
entitled to “relate-back” his allegation beyond the 30-day
deadline.
The only way the Court avoids this straightforward con-
clusion is by applying Irwin. Ante, at 420–422. Although
Irwin does perhaps narrow the scope of the sovereign immu-
nity canon, it does so only in limited circumstances. In par-
ticular, where the Government is made subject to suit to the
same extent and in the same manner as private parties are,
Irwin holds that the Government is subject to the rules that
are “applicable to private suits.” 498 U. S., at 95. The
Court in Irwin, addressing equitable tolling, explained that
“[t]ime requirements in lawsuits between private litigants
are customarily subject to ‘equitable tolling,’ ” and that
“[o]nce Congress has made . . . a waiver [of sovereign immu-
nity], . . . making the rule of equitable tolling applicable to
suits against the Government, in the same way that it is ap-
plicable to private suits, amounts to little, if any, broadening

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427 Cite as: 541 U. S. 401 (2004)
Thomas, J., dissenting
of the congressional waiver.” Ibid. The Court determined
that “[s]uch a principle is likely to be a realistic assessment
of legislative intent as well as a practically useful principle
of interpretation.” Ibid.
Notwithstanding Irwin’s limited scope, the Court con-
cludes: “Irwin’s reasoning would be diminished were it
instructive only in situations with a readily identifiable
private-litigation equivalent.” Ante, at 422. The existence
of this “private-litigation equivalent,” however, formed the
very basis for the Court’s holding in Irwin.
I agree with the Government that there is “no analogue in
private litigation,” Brief for Respondent 39, for the EAJA
fee awards at issue here. Section 2412(d) authorizes fee
awards against the Government when there is no basis for
recovery under the rules for private litigation.5 Irwin’s
analysis simply cannot apply to a proceeding against the
Government when there is no analogue for it in private liti-
gation. Accordingly, I would apply the sovereign immunity
canon to construe strictly the scope of the Government’s
waiver and, therefore, against allowing an applicant to avoid
the express statutory limitation through judicial application
of the relation-back doctrine. For these reasons, I respect-
fully dissent.
5 Compare 28 U. S. C. § 2412(d)(1)(A) (“Except as otherwise specifically
provided by statute, a court shall award to a prevailing party other than
the United States fees and other expenses . . . incurred by that party in
any civil action . . . brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the position
of the United States was substantially justified or that special circum-
stances make an award unjust”) with § 2412(b) (“The United States shall
be liable for such fees and expenses to the same extent that any other
party would be liable under the common law or under the terms of any
statute which specifically provides for such an award”).