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 respondentappellee. 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 proclaimant” system for adjudicating veterans’ claims for

benefits, where it “helps to ensure that [veterans] will 

seek an appeal when the [Department of Veterans Affairs] 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 Department 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 readjudication, which ultimately established his entitlement to 

disability compensation. 

Having prevailed, Mr. Wagner timely filed an application for $11,710.57 in fees pursuant to EAJA, which

directs a court to award reasonable “fees and other expenses” 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 granted 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 supplemental application, the Veterans Court entered judgment 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 application, 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. Wagner’s “original request was, in substantial part, unreasonable” 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 challenge 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. Wagner’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 Veterans 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 application, 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 judgment 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 request, [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 challenges the government made to the reasonableness of Mr. 

Wagner’s second supplemental application, agreeing with 

five of the challenges and accordingly granting Mr. Wagner 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 issuance 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 petitioned 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 jurisdiction 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 supplemental 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 consideration. 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 Veterans 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 correctness of the Veterans Court’s denial of the motion for 

judgment and mandate could make the difference between 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 payment.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 judgment 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 judgment. 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 supplemental application) that was contested on appeal (a 

contest affecting the degree of success). Such a determination, 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 pending. 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 applications, “Congress envisioned only one strict requirement in 

EAJA fee cases, namely that the court and the Government 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 considerations 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 “particularly 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. Principi, 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 application (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 decision 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 judgments, 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. Wagner’s request for fees in his second supplemental application. 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 reasonable 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 expended 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 useful starting point for determining the amount of a reasonable 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 Veterans 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 determining 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 prevailing 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 hourstimes-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 adjustment is requested on the basis of either the exceptional 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 request in his second supplemental fee application. 
WAGNER v. SHINSEKI 13

CONCLUSION

We vacate the Veterans Court’s denial of Mr. Wagner’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 regarding Mr. Wagner’s second supplemental application. 

No costs.

VACATED IN PART, AFFIRMED IN PART, AND 

REMANDED