Clara Sue Padgett (“Mrs. Padgett”) appeals from a final order of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying, in part, her application for an award of attor
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ney fees and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
See Padgett v. Shinseki,
Background
Padgett served on active duty in the United States Army from January 1943 until July 1945. He served in Europe, Africa, and the Middle East, and was awarded, among other commendations, the Bronze Star and the Purple Heart. In August 1945, Padgett was awarded disability benefits for a left knee injury he incurred while in the Army. In March 1993, he filed a claim seeking service-connected benefits for a right hip injury, but his claim was denied by a Department of Veterans Affairs Regional Office (“RO”). In 1995, however, the Board of Veterans’ Appeals (“board”) remanded the case to the RO for reconsideration.
On remand, the RO again denied Padgett’s claim, and the board again reversed and remanded. Ultimately, in December 1999, the board affirmed the RO’s third denial of Padgett’s claim, concluding that his hip disability “was not incurred, directly or presumptively, in service” and was “not proximately due to or the result of [his] service-connected left knee disability.”
In 2001, the Veterans Court vacated the board’s decision and remanded for reconsideration.
See Padgett v. Principi,
No. 00-659,
Shortly after the
En Banc Decision
issued, Padgett’s attorney informed the Veterans Court that Padgett had died on November 3, 2004. Soon thereafter, the Secretary moved to recall the
En Banc Decision
and to dismiss Padgett’s appeal as moot. Mrs. Padgett opposed the Secretary’s motion and requested that she be substituted for her husband on appeal in order to preserve the court’s judgment granting her husband service connection. On September 7, 2005, the Veterans Court
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(1) withdrew its
En Banc Decision;
(2) dismissed Padgett’s appeal as moot; (3) vacated the underlying board decision; and (4) denied Mrs. Padgett’s motion to be substituted.
Padgett v. Nicholson,
On appeal, this court reversed. Relying upon a long line of Supreme Court authority, we concluded that Padgett’s death did not moot the case because it had been fully briefed and submitted to the Veterans Court prior to his death.
Padgett v. Nicholson,
We concluded, moreover, that Mrs. Padgett should be allowed to substitute on her husband’s appeal given “[t]he continuing relevance and preclusive effect” that the adjudication of his claim had on her own claim for accrued benefits.
1
Id.
at 1370. We explained that if the
En Banc Decision
were withdrawn, the board’s prior decision denying Padgett benefits would be reinstated and “would adversely affect [Mrs. Padgett’s own claim for accrued benefits] in the same way it adversely impacted Padgett’s claim at the time he filed his notice of appeal.”
Padgett I,
In June 2006, while the appeal to this court was pending, Mrs. Padgett filed her own claim for accrued benefits. The RO denied her claim, however, pointing to the board’s previous decision denying Padgett’s claim for service connection. After Padgett I required the Veterans Court to reinstate its En Banc Decision, however, the Secretary instructed the RO to conduct a “special review” of Mrs. Padgett’s accrued benefits claim. The RO thereafter reversed its earlier decision and awarded Mrs. Padgett accrued benefits. Relying upon the En Banc Decision, the RO concluded that (1) it had erred in rejecting the opinions of two physicians who had submitted statements indicating that Padgett had injured his hip while on active duty; and (2) its denial of Padgett’s claim for direct service connection had been “clearly and unmistakably erroneous.”
On July 8, 2008, on remand from this court, the Veterans Court reinstated its
En Banc Decision
awarding Padgett service connection
nunc pro tunc
to the day before he died.
Padgett v. Peake,
On October 27, 2008, Mrs. Padgett filed an application seeking $87,802.17 in attorney fees and expenses under the EAJA as well as a motion to substitute for purposes of pursuing the EAJA application on her husband’s behalf. The Secretary opposed the motion to substitute, noting that Mrs. Padgett had been denied substitution on her husband’s claim following the Secretary’s decision to award her accrued benefits. On February 3, 2009, the Veterans Court issued an order asking Mrs. Padgett to “provide information as to whether she [was] the executor or personal representa *953 tive of [Padgett’s] estate.” In response, Mrs. Padgett informed the court that she was named the personal representative of her husband’s estate pursuant to his last will and testament. The Veterans Court subsequently granted Mrs. Padgett’s motion to be substituted for purposes of the EAJA proceedings, explaining that “[a]l-though Mrs. Padgett was denied substitution in the underlying merits case, her status as the personal representative of her deceased husband’s estate gives her standing to be substituted in an EAJA action.”
On December 16, 2009, the Veterans Court granted, in part, Mrs. Padgett’s application for attorney fees.
EAJA Decision,
Mrs. Padgett filed a motion seeking full court review of the Veterans Court’s order, but this motion was denied on March 4, 2010. She then appealed to this court.
Discussion
We have jurisdiction over appeals from the Veterans Court under 38 U.S.C. § 7292. Interpretation of the EAJA is a question of law, subject to
de novo
review.
Kelly v. Nicholson,
Although the present case has a long and tortuous history, the issue presented on appeal is a straightforward one: Can the surviving spouse of a deceased veteran, who serves as the personal representative of his estate, obtain fees under the EAJA 2 for attorney hours expended following the veteran’s death? We conclude that she can.
Pursuant to the EAJA, a “prevailing party” in litigation against the government is entitled to recover reasonable attorney fees and expenses unless the court finds the position of the United States in the underlying litigation was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Veterans Court determined that Padgett was a “prevailing party” for purposes of the EAJA and that the government’s position in the underlying litigation was not “substantially justified.”
EAJA Decision,
Mrs. Padgett contends that the Veterans Court erred in denying attorney fees for work performed following her husband’s death. She argues that “[t]he Veterans Court erroneously presupposed that no work done after a veteran has died can be in support of the veteran’s own claim for benefits.” She asserts, moreover, that the decision to deny attorney fees for time expended following her husband’s death “is irreconcilable with [the] EAJA’s remedial purpose” and “imposes a limitation on [the] EAJA that is neither derived from the statute nor supported by [Federal Circuit precedent].”
We agree. The government points to nothing in the text of the EAJA or its legislative history to support a per se rule denying recovery for attorney fees incurred after a claimant’s death. We reject the government’s argument that “any litigation following [a] veteran’s death inherently cannot be litigation in pursuit of the veteran’s own claim for benefits.” Where, as here, litigation following a veteran’s death is required to obtain a nunc pro tunc judgment on his claim for service connection, attorney hours devoted to such litigation are directly related to the veteran’s claim.
Following a veteran’s death, certain specified survivors have the right to recover the benefits that were due and payable to him at the time of his death.
See
38 U.S.C. § 5121(a);
Phillips v. Shinseki,
Simply because a veteran’s surviving spouse must pursue her own separate claim for accrued benefits following the veteran’s death, however, does not mean that any litigation following a veteran’s death relates only to the survivor’s, rather than the veteran’s, claim. Where a veteran’s entitlement to a
nunc pro tunc
judgment is in dispute, litigation on that judgment will necessarily continue after his death. Indeed, the history of the present case illustrates that litigation on a veteran’s claim for service connection can continue long after he has died. In March 1993, Padgett filed a claim seeking service-connected benefits for a right hip disability. The DVA repeatedly denied his claim, but in April 2005 an en banc panel of the Veterans Court awarded him service connection after concluding that the board’s previous denials of his claim were “simply not plausible in light of the record viewed in its entirety.”
En Banc Decision,
On appeal, this court reversed, concluding that the Veterans Court should not have withdrawn its decision, but should instead have reissued that decision
nunc
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pro tunc
to the date of Padgett’s death.
3
Padgett I,
Although Mrs. Padgett had standing to be substituted on Padgett’s appeal, there was no question that it was his claim, not hers, that was being litigated.
5
Our hold
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ing was that “entering
Padgett’s judgment”
on a
nunc pro tunc
basis was consistent with the statutes governing the jurisdiction of the Veterans Court.
Id.
at 1368 (emphasis added). Indeed, litigation on Padgett’s claim was not fully resolved until July 8, 2008 — nearly four years after he died — when the Veterans Court entered a
nunc pro tunc
judgment on that claim.
See Nunc Pro Tunc Decision,
By necessity, a veteran’s successor in interest must litigate to obtain a
nunc pro tunc
judgment on his behalf.
See Phillips,
Most of the attorney fees that were denied by the Veterans Court relate to attorney hours devoted to the first appeal to this court. The government’s arguments as to why such fees are not recoverable are internally inconsistent. The government acknowledges that Padgett was a “prevailing party” for purposes of obtaining an EAJA award. Padgett prevailed, however, only as a result of litigation occurring after his death. As discussed previously, although the
En Banc Decision
awarded Padgett service connection, the Veterans Court vacated that decision when it learned of his death. It was only because of the successful appeal to this court,
see Padgett I,
We likewise reject the government’s argument that this court has no jurisdiction over this appeal because it involves only a factual determination regard *957 ing the “reasonableness” of Mrs. Padgett’s fee request. There is no dispute that this court lacks authority to review challenges to factual determinations made in veterans’ cases. See 38 U.S.C. § 7292(d)(2). Whether the EAJA permits the award of attorney fees for time expended pursuing a nunc pro tunc judgment following a veteran’s death, however, is a question of statutory interpretation that falls squarely within the scope of our appellate jurisdiction. Id. § 7292(d)(1).
Conclusion
Accordingly, the order of the United States Court of Appeals for Veterans Claims is reversed and the case is remanded for further proceedings consistent with this opinion.
Costs
Appellant shall have her costs.
REVERSED AND REMANDED.
Notes
. "Accrued benefits” are benefits that are "due and unpaid” to the veteran at the time of his death. 38 U.S.C. § 5121(a). A surviving spouse, or other appropriate beneficiary, can receive these accrued benefits after a veteran’s death. Id.
. In relevant part, the EAJA provides:
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), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency 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 circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
. A judgment that is issued nunc pro tunc (which literally means “now for then”) assigns an earlier effective date to a judgment than its actual date of issuance. Such a judg- _ ment is generally used to correct the timing of a judgment where its issuance has been delayed through no fault on the part of the litigants:
|T]he rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up.
Mitchell v. Overman,
. In 2008, after our decision in Padgett I, Congress enacted legislation that expressly allows an accrued benefits claimant to be substituted on a deceased veteran's claim:
If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.
38U.S.C. § 5121A(a)(1).
This provision only applies in cases in which the veteran died after October 10, 2008. See Veterans’ Benefits Improvement Act of 2008, Pub.L. No. 110-389, 122 Stat. 4145, 4151.
. It has sometimes been asserted that “a veteran’s claim dies when he does,” but this proposition "is too broadly stated.”
Withdrawal Order,
Under certain circumstances, however, a veteran's claim can survive his death. Where, as here, a veteran dies after his case has been submitted to the Veterans Court, but before the court has entered judgment on his claim, a qualified accrued benefits claimant can substitute on appeal in order to obtain a judgment on the veteran’s claim.
Phillips,
. In
Phillips,
we allowed the daughter of a deceased veteran, who was the representative of his estate but who was not herself an accrued benefits claimant, to pursue an EAJA application on behalf of her father’s estate.