Wagner v. Shinseki, 2013 U.S. App. LEXIS 21587

Phillip Wagner, a Navy veteran, prevailed on appeal to the Veterans Court and obtained an EAJA fee award of $8,601.80 (Oct. 2009) and a supplemental award of $2,458.90 (May 2011).
The Veterans Court entered judgment on those awards on June 10, 2011; the government did not appeal within the 60-day statutory window.
Wagner later filed a second supplemental EAJA application (seeking $25,855.75) for work defending the first supplemental award; the Veterans Court reduced that request and withheld entry of an enforceable judgment on the earlier, uncontested awards.
Wagner moved (Mar. 2012) for issuance of judgment and mandate to obtain payment of the uncontested October 2009 and May 2011 awards; the Veterans Court denied the motion, stating it would not "circumvent [the Secretary's] appellate rights."
The Federal Circuit held that the Veterans Court erred: by August 2011 the government had forfeited any right to appeal the June 2011 judgment, so withholding issuance of judgment to protect appellate rights was legally unsupported.
The Federal Circuit vacated the denial of the motion for judgment and mandate (remanding for further consideration) and affirmed the Veterans Court's reductions in the second supplemental fee award.

Issue	Wagner's Argument	Secretary's Argument	Held
Whether the Veterans Court erred by refusing to issue judgment/mandate and thereby delaying payment of uncontested EAJA awards	Veterans Court should enter judgment and mandate so Wagner can receive prompt payment; appellate rights had been forfeited	Entry of an enforceable judgment should be deferred because a pending supplemental fee application could affect the Secretary's appellate rights; granting judgment would "circumvent" those rights	Vacated denial and remanded: Secretary had forfeited appeal rights (60-day window); withholding judgment to protect appeal rights was legally erroneous; prompt payment consistent with EAJA policy may be required
Whether the Veterans Court erred in reducing Wagner's second supplemental fee request for duplicative/unnecessary entries	Wagner argued the court should have required the Secretary to prove unreasonableness and should have considered results obtained in setting fees	Secretary challenged specific entries as duplicative/unnecessary; court reduced fees after applying reasonableness standard	Affirmed: fee applicant bears burden to document reasonable hours; Veterans Court permissibly excluded unreasonable hours and properly considered (or declined to further adjust for) results under Hensley framework

Comm’r v. Jean, 496 U.S. 154 (U.S. 1990) (EAJA's purpose is to remove financial disincentives to challenge the government)
Scarborough v. Principi, 541 U.S. 401 (U.S. 2004) (EAJA's role in ensuring access to review)
Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (fee applicant bears burden; exclude hours not reasonably expended)
Budinich v. Becton Dickinson & Co., 486 U.S. 196 (U.S. 1988) (attorney-fee awards are collateral to merits judgment for finality purposes)
Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (appeal deadlines are jurisdictional)
Henderson v. Shinseki, 562 U.S. 428 (U.S. 2011) (section 7292(a) signals jurisdictional time limits for appeals from Veterans Court)
Wagner v. Shinseki, 640 F.3d 1255 (Fed. Cir. 2011) (Federal Circuit previously held Wagner entitled to supplemental fees for defending initial EAJA application)
Kelly v. Nicholson, 463 F.3d 1349 (Fed. Cir. 2006) (EAJA's importance in pro-claimant veterans benefits system)
United States v. Eleven Vehicles, 200 F.3d 203 (3d Cir. 2000) (section 2412(d)(1)(B) timing rule does not apply to supplemental fee applications)