Smith v. McDonough, 995 F.3d 1338

Robert L. Smith appealed a Board of Veterans’ Appeals decision to the Court of Appeals for Veterans Claims (Veterans Court), challenging seven denied claims.
The Veterans Court granted relief on one claim (a gastrointestinal disorder) and denied the other six; judgment entered April 2019.
Smith sought EAJA fees for appellate counsel: 50.15 hours total including 18 hours of initial review of the 9,389‑page record; fee application reduced from $10,207.27 to $7,320 by Smith before decision.
The Veterans Court awarded fees but reduced the 18 hours of record review to 6 hours, relying on Cline v. Shinseki and applying a presumption that initial review time must be apportioned when some claims fail.
The Federal Circuit held that the Veterans Court misinterpreted 28 U.S.C. § 2412: reasonable time spent on initial record review that was necessary to pursue the successful claim is compensable even if other claims pursued were unsuccessful, reversed the reduction, and remanded to increase the award by $2,412 (to $7,603.61).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether EAJA requires automatic proportional reduction of initial record‑review hours when an appeal is only partly successful	Smith: No. Initial full‑record review is necessary to identify viable issues; reasonable time spent on that review that was necessary for the successful claim is recoverable under Hensley/EAJA.	VA: Yes. When only one of several claims succeeds, hours (including initial review) should be apportioned to successful claims (Veterans Court/Cline approach).	The Veterans Court erred. No statutory presumption requires reducing reasonable initial‑review time merely because other claims failed; compensate reasonable time necessary for the successful appeal.
Whether this Court has jurisdiction to decide the Veterans Court’s interpretation of EAJA	Smith: Presents a question of law (statutory interpretation of §2412) within this Court’s jurisdiction under 38 U.S.C. §7292.	VA: The reduction was a factual allocation and thus unreviewable.	This Court has jurisdiction because the dispute centers on statutory interpretation (a question of law), not exclusively on factual findings.

Comm’r v. Jean, 496 U.S. 154 (1990) (EAJA fees limited to time reasonably expended on successful claims)
Hensley v. Eckerhart, 461 U.S. 424 (1983) (framework for fee awards when a plaintiff partially prevails; focus on reasonable hours for overall relief obtained)
Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988) (partially prevailing plaintiffs may be compensated for expenses they would have incurred had suit been confined to the successful ground)
Wagner v. Shinseki, 640 F.3d 1255 (Fed. Cir. 2011) (EAJA reasonableness standard for attorney hours)
Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (discussing EAJA purpose and scope in veterans’ cases)
Cline v. Shinseki, 26 Vet. App. 18 (2012) (Veterans Court decision relied upon below regarding apportionment)
Vazquez‑Flores v. Shinseki, 26 Vet. App. 9 (2012) (Veterans Court decision addressing compensability of general case‑management and record review time)
Elcyzyn v. Brown, 7 Vet. App. 170 (1994) (record review is "inextricably linked" to case preparation and may not be equitably apportioned)
Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (observations on representation of veterans and role of non‑lawyer advocates)