Wagner v. Shinseki

United States Court of Appeals
for the Federal Circuit
______________________

PHILLIP E. WAGNER,
Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________

2013-7024
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-1702, Judge Alan G. Lance, Sr.
______________________

Decided: October 24, 2013
______________________

KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant. On the
brief was THEODORE C. JARVI, Law Offices of Theodore C.
Jarvi, of Tempe, Arizona.

JAMES SWEET, Trial Counsel, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and CHRISTINA L. GREGG,
2 WAGNER v. SHINSEKI

Staff Attorney, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was BRIAN D.
GRIFFIN.
______________________

Before O’MALLEY, CLEVENGER, and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
In the Equal Access to Justice Act (EAJA), codified in
relevant part at 28 U.S.C. § 2412, Congress mandated
that, in defined circumstances, the government pay
appropriate attorney’s fees to private parties who win in
litigation against it. The policy “is to eliminate for the
average person the financial disincentive to challenge
unreasonable governmental actions.” Comm’r v. Jean,
496 U.S. 154, 163 (1990). EAJA applies, and its central
policy is of particular significance, in the “uniquely pro-
claimant” system for adjudicating veterans’ claims for
benefits, where it “helps to ensure that [veterans] will
seek an appeal when the [Department of Veterans Af-
fairs] has failed in its duty to aid them or has otherwise
erroneously denied them the benefits that they have
earned.” Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed.
Cir. 2006).
This case involves a delay in actual payment of EAJA
fee awards for a long period after there was no longer a
live dispute about those awards. We hold that the long
delay, which undermined the EAJA policy as it applies to
veterans’ claims for benefits, was not justified by the only
reason given by the Court of Appeals for Veterans Claims.
This case also involves a later award, which does not
involve an issue of payment delay and as to which we
affirm the Veterans Court in its reduction of the request
for fees.
WAGNER v. SHINSEKI 3

BACKGROUND
In 2001, Phillip Wagner, who served in the United
States Navy for 23 years, sought disability compensation
for a thyroid disorder that he claimed was contracted or
aggravated in the line of duty. The United States De-
partment of Veterans Affairs denied his claim. But in
March 2009, when his case was on appeal in the Veterans
Court, he secured an uncontested remand for readjudica-
tion, which ultimately established his entitlement to
disability compensation.
Having prevailed, Mr. Wagner timely filed an applica-
tion for $11,710.57 in fees pursuant to EAJA, which
directs a court to award reasonable “fees and other ex-
penses” to private parties who prevail in litigation against
the United States if certain requirements are met. 28
U.S.C. § 2412(d)(1)(A). The government conceded that
Mr. Wagner was entitled to an award but challenged the
amount. On October 14, 2009, the Veterans Court grant-
ed Mr. Wagner’s fee application in part, awarding him
$8,601.80, which gave the government all the reductions
it sought except for 3.2 hours of work. Wagner v.
Shinseki, No. 08-1702, slip op. at 3-4 (Vet. App. Oct. 14,
2009).
Twelve days later, on October 26, Mr. Wagner filed
his first supplemental application, which sought
$2,458.90 in fees for defending the original application
against the government’s reasonableness challenges.
Then, on January 5, 2010, before ruling on the first sup-
plemental application, the Veterans Court entered judg-
ment on the October 14, 2009 award:
The Court has issued a decision concerning the
application for attorney fees and expenses under
the Equal Access to Justice Act, 28 U.S.C. § 2412,
in this case. The time allowed for motions under
Rule 35 of the Court’s Rules of Practice and Pro-
4 WAGNER v. SHINSEKI

cedure has expired. Under Rule 36, judgment is
entered this date.
But the next day, January 6, the Veterans Court revoked
the judgment, providing no explanation for its action
other than its statement that the previous day’s judgment
“was issued in error.”
On January 19, 2010, after the Veterans Court had
vacillated on entry of judgment on the October 2009 fee
award on the original fee application, Mr. Wagner moved
the Veterans Court to enter judgment on that award. He
argued that “Rule 36 . . . provides that judgment will be
issued after the later of several events,” all of which had
already occurred. The Veterans Court denied the motion
on February 17, 2010; the “stamp order” simply “denied”
the motion, without giving a rationale.
That same day, February 17, 2010, the Veterans
Court denied Mr. Wagner’s first supplemental applica-
tion, which sought fees incurred defending the original
application. Wagner v. Shinseki, No. 08-1702, 2010 WL
537140 (Vet. App. Feb. 17, 2010). Because it had awarded
only $8,601.80 of the $11,710.57 requested in the original
application, the Veterans Court concluded that Mr. Wag-
ner’s “original request was, in substantial part, unreason-
able” and that it “cannot now conclude that his defense of
that request is worthy of pecuniary reward at the expense
of the public coffers.” Id. at 2. Mr. Wagner appealed to
this court, which reversed the Veterans Court on April 29,
2011, holding that, because Mr. Wagner “was partially
successful in defending against the government’s chal-
lenge to his initial fee application, he was entitled to
supplemental fees commensurate with the degree of
success he achieved.” Wagner v. Shinseki, 640 F.3d 1255,
1261 (Fed. Cir. 2011). Three weeks later, on May 18,
2011, the Veterans Court on remand granted Mr. Wag-
ner’s first supplemental application (for $2,458.90).
WAGNER v. SHINSEKI 5

Wagner v. Shinseki, No. 08-1702, 2011 WL 1878520 (Vet.
App. May 18, 2011).
Twenty-three days later, on June 10, 2011, the Veter-
ans Court entered judgment. Although the judgment did
not specifically say, the government here expressly agrees
that the judgment of June 10, 2011, applied to both the
October 2009 award on the original application and the
May 2011 award on the first supplemental application.
Brief for Respondent-Appellee at 3.
On June 14, 2011, Mr. Wagner filed an additional
EAJA fee application, his second supplemental applica-
tion, seeking $25,855.75 for the work required to defend
his first supplemental application, including the work
done in the successful appeal to this court.
By March 16, 2012, Mr. Wagner had yet to receive
any payment from his original application (granted in
part in October 2009) or from his first supplemental
application (granted in full in May 2011), so he filed with
the Veterans Court a motion for the issuance of a judg-
ment and mandate. Mr. Wagner acknowledged that his
second supplemental application was still pending and
would require further proceedings, but he argued that
“there is nothing in those subsequent proceedings which
can affect the October 2009 or May 2011 decisions, which
found [entitlement] to reasonable fees.” Mr. Wagner
pleaded that, “[i]f the [Veterans] Court denies this re-
quest, [he] respectfully requests that it give its reasons
and bases for such a denial.”
The Veterans Court issued its most recent decision in
this matter (and the decision now on appeal) on June 27,
2012. Wagner v. Shinseki, No. 08-1702 (Vet. App. June
27, 2012). The Veterans Court first addressed six chal-
lenges the government made to the reasonableness of Mr.
Wagner’s second supplemental application, agreeing with
five of the challenges and accordingly granting Mr. Wag-
ner fees for 41.5 fewer hours than he requested. Id. at 2-
6 WAGNER v. SHINSEKI

3. The Veterans Court then recognized that “[a]lso before
the [Veterans] Court is [Mr. Wagner’s] motion for issu-
ance of judgment and mandate.” Id. at 3. The Veterans
Court denied the motion with the explanation that the
“Secretary [of Veterans Affairs] opposes this motion and
the [Veterans] Court will not circumvent his appellate
rights.” Id.
The Veterans Court entered judgment on its June 27
decision on October 9, 2012. Mr. Wagner timely peti-
tioned this court for review under 38 U.S.C. § 7292(a).
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited. See 38 U.S.C. § 7292. We have
jurisdiction to decide appeals insofar as they challenge a
decision of the Veterans Court with respect to a rule of
law, including the interpretation or validity of any statute
or regulation. Id. § 7292(a), (d)(1). We do not have juris-
diction to review a challenge to a factual determination or
a challenge to a law or regulation as applied to the facts of
a particular case except to the extent an appeal presents a
constitutional issue. Id. § 7292(d)(2).
Mr. Wagner appeals the Veterans Court’s refusal to
require that the government promptly pay his original
and first supplemental EAJA applications as well as its
reduction of the request for fees on his second supple-
mental application. Because the Veterans Court has
offered only one explanation for denying Mr. Wagner’s
motions to issue a judgment and mandate, and that
explanation is legally erroneous, we vacate its denial of
his March 2012 motion and remand for further considera-
tion. As to the Veterans Court’s ruling on Mr. Wagner’s
second supplemental application, we see no legal error
and therefore affirm.
WAGNER v. SHINSEKI 7

A
The sole rationale that the Veterans Court provided
for denying Mr. Wagner’s second motion for prompt
payment—that the “Secretary opposes this motion and
the Court will not circumvent his appellate rights”—
misinterprets the laws governing appeals from the Veter-
ans Court. As of the June 27, 2012 decision that is now
on review, indeed as of August 2011, the government had
no such appeal rights concerning the October 2009 and
May 2011 fee awards. Thus, we vacate the judgment of
the Veterans Court in this respect.
As an initial matter, we note that the correctness of
the Veterans Court’s June 2012 denial of the motion for
judgment and mandate is not moot, despite the entry of
the October 2012 judgment on the June denial that
brought this case here. Presumably because there is no
mandate providing an immediately enforceable right of
payment, the government has not paid Mr. Wagner the
uncontested October 2009 and May 2011 fee awards, and
it has not offered to do so while this appeal proceeds.
Moreover, our ruling on that denial can easily have a
concrete effect on the timing of Mr. Wagner’s receipt of
payment. Mr. Wagner has already prevailed in part on
the second supplemental fee application; the government
has not contested the awarded amount; and he may file (if
he has not already filed) an application for fees for his
work in obtaining that amount. Our ruling on the cor-
rectness of the Veterans Court’s denial of the motion for
judgment and mandate could make the difference be-
tween his being paid immediately on the earlier fee
awards and his being told, once again, that the pendency
8 WAGNER v. SHINSEKI

of a follow-on application requires further delay in pay-
ment. 1
On the merits, we conclude, the Veterans Court relied
on an incorrect view of the law in denying the motion for
judgment and mandate on the ground that granting the
motion would prejudice the Secretary’s appeal rights
regarding the October 2009 and May 2011 fee awards.
The Secretary had no such rights by 2012.
On June 10, 2011, the Veterans Court entered judg-
ment on Mr. Wagner’s original application and first
supplemental application, both of which the Veterans
Court had already granted in decisions dated June 14,
2009, and May 18, 2011, respectively. The government
had 60 days from entry of the June 10, 2011 judgment to
appeal the award of $8,601.80 on Mr. Wagner’s original
application and $2,458.90 on his first-supplemental
application. Those seeking review of a Veterans Court
decision “shall . . . fil[e] a notice of appeal . . . within the
time and in the manner prescribed for appeal to United
States courts of appeals from United States district
courts.” 38 U.S.C. § 7292(a). Where, as here, “one of the
parties is . . . a United States officer or employee sued in
an official capacity,” appeals to courts of appeals must be
taken within 60 days after the district court enters judg-
ment. 28 U.S.C. § 2107(b); see also Veterans Court Rule
of Practice and Procedure 36(a) (“Judgment begins the 60-

1 We do not know how the Veterans Court would
apply its Rule 39, or whether it would waive the rule, if a
post-remand fee application were filed for work on an
earlier application (here, for example, the second supple-
mental application) that was contested on appeal (a
contest affecting the degree of success). Such a determi-
nation, presumably taking into account the relevant
statutory policies, is for the Veterans Court in the first
instance.
WAGNER v. SHINSEKI 9

day time period for appealing to the U.S. Court of Appeals
for the Federal Circuit.”). For appeals from district
courts, the Supreme Court “has long held that the taking
of an appeal within the prescribed time is ‘mandatory and
jurisdictional,’” Bowles v. Russell, 551 U.S. 205, 209
(2007), and it has clearly but indirectly indicated that the
same conclusion applies to appeals under section 7292(a)
from the Veterans Court to this court, Henderson v.
Shinseki, 131 S. Ct. 1197, 1205 (2011) (finding that the
language of section 7292(a) “clearly signals” jurisdictional
restrictions on the time for taking an appeal). Thus, by
August 9, 2011, the government, in not appealing the
June 2011 judgment, forfeited any right to do so later.
For that reason, the Veterans Court’s denial of Mr.
Wagner’s motion rested on a legally erroneous rationale—
that the “Secretary opposes [the] motion” and to grant it
would “circumvent his appellate rights.” That error
requires vacating the denial and remanding with respect
to the motion for judgment and mandate.
The government has advanced what it suggests is an
alternative ground to affirm the denial, which we address
as such and because it is relevant to the remand. At oral
argument, citing United States v. Eleven Vehicles, 200
F.3d 203 (3d Cir. 2000), the government suggested that
the EAJA timing requirement, 28 U.S.C. § 2412(d)(1)(B),
would preclude the entry of an enforceable judgment on a
fee application if a supplemental application were pend-
ing. We see no merit in that argument. In fact, Eleven
Vehicles specifically held that section 2412(d)(1)(B) does
not even apply to a supplemental fee application. Id. at
209-10. Once an initial fee application is filed within 30
days of the merits judgment, the timing rule of section
2412(d)(1)(B) is satisfied, and as to supplemental applica-
tions, “Congress envisioned only one strict requirement in
EAJA fee cases, namely that the court and the Govern-
ment be put on notice that the claimant seeks fees under
the EAJA.” Id. at 209. For a supplemental application,
10 WAGNER v. SHINSEKI

the tribunal’s procedural rules as well as equitable con-
siderations may apply to the time of filing, but section
2412(d)(1)(B) does not. Id. at 209-10.
The government has not cited anything in EAJA,
much less Title 38, that supports long delays in issuing
enforceable judgments for payment of fee awards that are
no longer subject to challenge. Payment of attorney’s
fees—actual payment of attorney’s fees—plays the “par-
ticularly important role” in the veterans’ adjudicatory
system of ensuring “that litigants ‘will not be deterred
from seeking review of, or defending against, unjustified
governmental action because of the expense involved.’”
Wagner, 640 F.3d at 1258 (quoting Scarborough v. Princi-
pi, 541 U.S. 401, 407 (2004)). “Removing such deterrents
is imperative in the veterans benefits context, which is
intended to be uniquely pro-claimant.” Kelly v. Nicholson,
463 F.3d 1349, 1353 (Fed. Cir. 2006); see Jean, 496 U.S. at
163 (“the specific purpose of the EAJA is to eliminate . . .
the financial disincentive to challenge unreasonable
governmental actions”).
Nor is entry of an enforceable judgment on a fee ap-
plication (after the appeal time has run) barred by a
concern that finality is defeated by the filing of a further
application for fees for the work done on the underlying
application. The Supreme Court has held that, for the
purposes of finality and appeal, an award of attorney’s
fees is collateral to the judgment on the merits in the
underlying case. Budinich v. Becton Dickinson & Co., 486
U.S. 196, 200 (1988). Specifically, “[a] question remaining
to be decided after an order ending litigation on the
merits does not prevent finality if its resolution will not
alter the order or moot or revise decisions embodied in the
order.” Id. at 199. For the same reasons, a pending
request for supplemental fees is “separate from” a deci-
sion on the underlying application.
WAGNER v. SHINSEKI 11

In short, there is no apparent rule of law that would
require affirmance of the June 2012 denial of the motion
for judgment and mandate. To the contrary, a number of
relevant legal authorities support prompt payment of
uncontested fees, despite the pendency of follow-on fee
applications. Those sources hardly exhaust the possible
grounds for determining the timing of enforceable judg-
ments, but such additional grounds, not having been
articulated by the Veterans Court or the government
here, are not before us in this appeal.
B
We affirm the Veterans Court’s reduction of Mr. Wag-
ner’s request for fees in his second supplemental applica-
tion. The government challenged six categories of entries
in Mr. Wagner’s itemized fee request as unreasonably
billing for duplicative or unnecessary work. The Veterans
Court agreed with five of the challenges and reduced the
award accordingly. Mr. Wagner argues that the Veterans
Court erred (1) by not requiring the government to submit
evidence demonstrating that the challenged fees were
unreasonable and (2) by failing to consider the results Mr.
Wagner obtained when determining the amount of rea-
sonable fees. Our review is limited to legal questions. We
hold that the Veterans Court committed no error of law in
the respects Mr. Wagner alleges.
First, the Veterans Court decided that some entries in
Mr. Wagner’s second supplemental application failed to
demonstrate that the hours billed were reasonable. See
Wagner, No. 08-1702, slip op. at 2 (Vet. App. June 27,
2012) (“The Court agrees that [Mr. Wagner] has not
demonstrated that the hours cited by the [Government]
were necessary.”). As Mr. Wagner acknowledges, “the fee
applicant bears the burden of establishing entitlement to
an award and documenting the appropriate hours ex-
pended and hourly rates.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). The Supreme Court has instructed that
12 WAGNER v. SHINSEKI

courts granting fee applications “should exclude from
[the] fee calculation hours that were not ‘reasonably
expended,’” which includes “hours that are excessive,
redundant, or otherwise unnecessary.” Id. at 434. The
Veterans Court did not depart from that standard, and its
finding that Mr. Wagner did not meet his burden of
demonstrating reasonableness under that standard is one
we have no jurisdiction to review. See 38 U.S.C. § 7292.
Second, the Veterans Court stated that the “most use-
ful starting point for determining the amount of a reason-
able fee is the number of hours reasonably expended
multiplied by a reasonable hourly rate.” Wagner, No. 08-
1702, slip op. at 1 (Vet. App. June 27, 2012). The Veter-
ans Court then recognized that the product of reasonable
hours times a reasonable rate does not end the inquiry;
instead, a court should “consider whether the hours
claimed are . . . contraindicated by the factors for deter-
mining reasonableness itemized in Hensley or Ussery [v.
Brown, 10 Vet. App. 51, 53 (1997)].” Id. at 1-2. As both
Hensley and Ussery list the results obtained by the pre-
vailing party among the factors to consider, see Hensley,
461 U.S. at 440; Ussery, 10 Vet. App. at 53, the Veterans
Court’s reference to those decisions incorporates that
factor as a material consideration where it is placed in
issue. We see no error in the Veterans Court’s legal
approach, which contemplates adjustment of the hours-
times-fees calculation by consideration of results obtained
where such an adjustment is requested. Mr. Wagner has
not cited any law requiring such consideration where not
requested. See Hensley, 461 U.S. at 437 (“When an ad-
justment is requested on the basis of either the exception-
al or limited nature of the relief obtained by the plaintiff,”
a “court should make clear that it has considered the
relationship between the amount of the fee awarded and
the results obtained.”). Seeing no legal error, we affirm
the Veterans Court’s reduction of Mr. Wagner’s fee re-
quest in his second supplemental fee application.
WAGNER v. SHINSEKI 13

CONCLUSION
We vacate the Veterans Court’s denial of Mr. Wag-
ner’s motion for the entry of a judgment and mandate
regarding the October 2009 and May 2011 fee awards and
remand. We affirm the Veterans Court’s judgment re-
garding Mr. Wagner’s second supplemental application.
No costs.
VACATED IN PART, AFFIRMED IN PART, AND
REMANDED