United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PHILLIP E. WAGNER, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7113 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-1702, Judge Alan G. 

Lance, Sr. 

______________________ 

Decided: April 29, 2011 

_______________________ 

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. 

DANIEL RABINOWITZ, Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondentappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 
WAGNER v. DVA 2

and BRIAN M. SIMKIN, Assistant Director. Of counsel on 

the brief were MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, and KRISTIANA BRUGGER, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before BRYSON, MAYER, and DYK, Circuit Judges. 

MAYER, Circuit Judge. 

Phillip E. Wagner appeals from a final judgment of 

the United States Court of Appeals for Veterans Claims 

(“Veterans Court”) denying his application for supplemental attorney fees incurred in the defense of his initial 

application for attorney fees under the Equal Access to 

Justice Act (“EAJA”), 28 U.S.C. § 2412. See Wagner v. 

Shinseki, No. 08-1702, 2010 U.S. App. Vet. Claims LEXIS 

713 (Vet. App. Apr. 21, 2010). We reverse and remand. 

BACKGROUND

Wagner served in the United States Navy from July 

1962 to July 1979 and from March 1982 to March 1988. 

He appealed to the Veterans Court after the Board of 

Veterans’ Appeals (“board”) denied his claim for serviceconnected benefits for a thyroid disorder. Pursuant to a 

joint motion of the parties, the Veterans Court vacated 

the board’s decision and remanded the case to the Department of Veterans Affairs for reconsideration. 

Wagner subsequently filed an application for attorney 

fees under the EAJA, arguing that the remand made him 

a “prevailing party” for purposes of establishing entitlement to an EAJA award. He sought fees of $11,710.57 for 

70.3 hours of attorney work. The Secretary of Veterans 

Affairs conceded that Wagner was a prevailing party for 

purposes of the EAJA, but challenged the amount of the 
3 WAGNER v. DVA

fee request based on “the reasonableness of the requested 

fees.” See Wagner v. Shinseki, No. 08-1702, 2009 U.S. 

App. Vet. Claims LEXIS 1791, at *1 (Vet. App. Oct. 14, 

2009) (citations and internal quotation marks omitted). 

Specifically, the Secretary argued that (1) the fee for legal 

research should be reduced by 14.6 hours because Theodore C. Jarvi, Wagner’s attorney, was an experienced 

veterans’ law attorney, and should not have needed to 

conduct extensive research, (2) the fee for review of Wagner’s claim file should be reduced by 8.8 hours because 

Jarvi had already spent 7.7 hours reviewing the file, and 

(3) the fee for scanning the claims file and instructing 

staff on how to combine the files of the record before the 

agency (“RBA”) should be reduced by 4.0 hours since these 

tasks were purely clerical. Id. at *2-3. Wagner thereafter 

filed a response, defending his original fee application and 

requesting additional fees of $4,134.00 for time spent 

defending the fees that had been challenged by the Secretary. 

On October 14, 2009, the Veterans Court granted 

Wagner an EAJA award of $8,601.80, which was an 

approximately 26.5 percent reduction from the $11,710.57 

he had requested. Id. at *1-4. The court reduced Wagner’s requested fees for legal research by 8.5 hours, the 

fees sought for review of the claims file by 8.8 hours, and 

the fees sought for scanning the claims file and instructing staff on how to combine files from the RBA by 1.5 

hours. Of the 27.4 hours that had been challenged by the 

Secretary, the Veterans Court disallowed 18.8 hours. Id. 

On October 26, 2009, Wagner filed a revised fee application, seeking $2,458.90 in supplemental fees for time 

expended defending his original EAJA fee request. Wagner did not seek compensation for time spent on arguments that were rejected by the Veterans Court when it 

made its original award. He argued, however, that he 
WAGNER v. DVA 4

was partially successful in defending his original fee 

application, and that he should be compensated for the 

10.87 hours he spent successfully responding to the 

Secretary’s challenges to his application as well as for the 

4.0 hours he spent reviewing the Veterans Court’s decision and drafting the supplemental fee request. 

On February 17, 2010, the Veterans Court, in a single 

judge decision, denied the application for supplemental 

fees. The court stated that it would “not reward [Wagner] 

for his efforts to defend his earlier application” since the 

court had “substantially reduced [Wagner’s] original 

EAJA application after concluding that much of the 

requested fees were unreasonable.” See Wagner v. Shinseki, No. 08-1702, 2010 U.S. App. Vet. Claims LEXIS 197, 

at *3 (Vet. App. Feb. 17, 2010) (“Supplemental Fees Decision”). The court asserted that “[i]t would be anomalous 

to reduce an [initial EAJA] award by some $3,000 and 

then award nearly that amount to the losing party simply 

for putting up a fight.” Id. 

Wagner thereafter filed a motion seeking panel review 

of the decision denying him supplemental fees, but the 

Veterans Court denied this motion on April 21, 2010. 

Wagner 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.1 Kelly v. 

Nicholson, 463 F.3d 1349, 1352 (Fed. Cir. 2006). 

 1 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 ex-
5 WAGNER v. DVA

The primary purpose of the EAJA is to ensure that 

litigants “will not be deterred from seeking review of, or 

defending against, unjustified governmental action because of the expense involved.” Scarborough v. Principi, 

541 U.S. 401, 407 (2004) (citations and internal quotation 

marks omitted). The statute plays a particularly important role in the veterans’ adjudicatory system: 

Removing [deterrents to seeking judicial review] 

is imperative in the veterans benefits context, 

which is intended to be uniquely pro-claimant, 

and in which veterans generally are not represented by counsel before the [regional office] and 

the board. [The] EAJA is a vital complement to 

this system designed to aid veterans, because it 

helps to ensure that they will seek an appeal 

when the VA has failed in its duty to aid them or 

has otherwise erroneously denied them the benefits that they have earned. 

Kelly, 463 F.3d at 1353 (citations and internal quotation 

marks omitted). 

“[A]n award of fees incurred in every stage of litigation is consistent with the legislative purpose of the EAJA 

 

penses, 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). 
WAGNER v. DVA 6

. . . .” Fritz v. Principi, 264 F.3d 1372, 1377 (Fed. Cir. 

2001). Thus, a prevailing party in a veterans case is 

entitled to an award of fees not only for hours devoted to 

the underlying merits litigation, but also for attorney time 

reasonably expended defending an initial EAJA application. Comm’r, Immigration & Naturalization Serv. v. 

Jean, 496 U.S. 154, 161-62 (1990) (“Jean”); Fritz, 264 F.3d 

at 1377. Fees awarded for the defense of an initial fee 

application are commonly referred to as “supplemental 

fees” or “fees on fees.” 

Wagner contends that the Veterans Court misinterpreted 28 U.S.C. § 2412(d)(1)(A) when it denied, in full, 

his petition seeking supplemental fees. He notes that he 

was partially successful in defending against the Secretary’s challenge to his initial EAJA application, and 

argues that he should be awarded supplemental fees 

commensurate with the degree of success he achieved. 

We agree. In Jean, the Supreme Court expressly rejected the argument that a claimant could be awarded 

supplemental fees only if the government’s challenge to 

an initial EAJA application was not substantially justified. 496 U.S. at 158-62. The Court explained that “[a]ny 

given civil action can have numerous phases,” but that 

“the EAJA—like other fee-shifting statutes—favors 

treating a case as an inclusive whole, rather than as 

atomized line-items.” Id. at 161-62. Recognizing that 

“requiring courts to make a separate finding of ‘substantial justification’ regarding the Government’s opposition 

to fee requests would multiply litigation,” id. at 163, the 

Court concluded that only one “threshold” determination 

that the government’s position in the underlying merits 

litigation was not substantially justified is required, id. at 

160. Accordingly, “a party who prevails in fee litigation 

under [the] EAJA may recover fees for legal services 

rendered during the fee litigation even if some of the 
7 WAGNER v. DVA

Government’s positions regarding the proper fee were 

‘substantially justified,’ i.e., the district court need not 

make a second finding of no substantial justification 

before awarding fees for the fee contest itself.” Scarborough, 541 U.S. at 419 n.6 (citing Jean, 496 U.S. at 160-

62). 

When calculating a supplemental fee award, a court is 

required to consider “the relationship between the 

amount of the fee awarded and the results obtained” 

through the initial EAJA application.2 Jean, 496 U.S. at 

163 n.10. Thus, supplemental fees should be denied “to 

the extent” that a claimant’s defense of his original fee 

application proves unsuccessful. Id. Conversely, however, supplemental fees should be granted to the extent 

that a claimant successfully defends his original fee 

application. See Fritz, 264 F.3d at 1377 (emphasizing 

that a veteran is “entitled to attorney fees incurred 

throughout the litigation, including those incurred in 

preparation and defense of the fee application to the 

extent those fees are defensible” (footnote omitted)). To 

 2 The Court explained: 

Because [Hensley v. Eckerhart, 461 U.S. 424, 437 

(1983)] requires the district court to consider the 

relationship between the amount of the fee 

awarded and the results obtained, fees for fee 

litigation should be excluded to the extent that 

the applicant ultimately fails to prevail in such 

litigation. For example, if the Government’s 

challenge to a requested rate for paralegal time 

resulted in the court’s recalculating and reducing 

the award for paralegal time from the requested 

time, then the applicant should not receive fees 

for the time spent defending the higher rate. 

Jean, 496 U.S. at 163 n.10. 
WAGNER v. DVA 8

deny a litigant all supplemental fees simply because the 

defense of his original fee application was not wholly 

successful unjustifiably dilutes the value of the original 

EAJA fee award and is contrary to the fundamental 

objectives of the EAJA. See Orange Blossom Ltd. P’ship 

v. S. Cal. Sunbelt Developers, Inc., 608 F.3d 456, 463 (9th 

Cir. 2010) (explaining that “it would be inconsistent [with 

the purpose of fee-shifting statutes] to dilute a fees award 

by refusing to compensate attorneys for the time they 

reasonably spent in establishing their rightful claim to 

the fee” (citations and internal quotation marks omitted)); 

Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978) 

(“If an attorney is required to expend time litigating his 

fee claim, yet may not be compensated for that time, the 

attorney’s effective rate for all the hours expended on the 

case will be correspondingly decreased.”); see also Norman 

v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1305 (11th 

Cir. 1988) (“To paraphrase the acute observation of baseball great Yogi Berra, a case ain’t over till it’s over. This 

means that . . . counsel are entitled to compensation until 

all benefits obtained by the litigation are in hand.”). 

Courts should look to the framework established in 

Hensley, 461 U.S. at 435-39, when calculating an appropriate supplemental fee award.3 See Jean, 496 U.S. at 

161-63. In setting the fee, “the most critical factor is the 

degree of success obtained.” Hensley, 461 U.S. at 436. 

 3 Although Hensley involved the award of fees under the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. 

§ 1988, the standards set forth for awarding attorney fees 

“are generally applicable in all cases in which Congress 

has authorized an award of fees to a ‘prevailing party.’” 

Hensley, 461 U.S. at 433 n.7. Furthermore, although 

Hensley involved an initial fee application, the fee guidelines it provides are applicable to supplemental fee applications as well. Jean, 496 U.S. at 161-63. 
9 WAGNER v. DVA

Thus, where a claimant “has achieved only partial or 

limited success,” a court “may attempt to identify specific 

hours that should be eliminated, or it may simply reduce 

the award to account for the limited success.” Id. at 436-

37. Because Hensley requires a court to calibrate the 

amount of attorney fees to the degree of success a claimant has achieved, it is generally appropriate to make an 

award of supplemental fees that is commensurate with 

the degree of success obtained on the original fee application. See, e.g., Schwarz v. Sec’y of Health & Human 

Servs., 73 F.3d 895, 909 (9th Cir. 1995) (affirming an 

award of 50 percent of the supplemental fees sought by a 

claimant where she obtained approximately 50 percent of 

the fees claimed in her initial fee application); Spellan v. 

Bd. of Educ., 69 F.3d 828, 829 (7th Cir. 1995) (emphasizing that a claimant’s success on his original fee application “is a material consideration in adjudicating the 

amount of fees recoverable in litigating an attorneys’ fee 

award”); Thompson v. Gomez, 45 F.3d 1365, 1367-69 (9th 

Cir. 1995) (concluding that a district court properly 

awarded 87 percent of the supplemental fees requested 

where claimants received 87 percent of the fees sought in 

their original fee application); In re Burlington N., Inc. 

Emp’t Practices Litig., 832 F.2d 430, 433-36 (7th Cir. 

1987) (concluding that the district court properly reduced 

a fees on fees award based upon the degree of success 

obtained in the original fee litigation); Harris v. 

McCarthy, 790 F.2d 753, 758-59 (9th Cir. 1986) (affirming 

a district court’s decision to award claimants 11.5 percent 

of their supplemental fee request since they had obtained 

only 11.5 percent of the fees requested in their original fee 

application); Institutionalized Juveniles v. Sec’y of Pub. 

Welfare, 758 F.2d 897, 924-25 (3d Cir. 1985) (concluding 

that the district court properly reduced fees on fees by 

12.5 percent where claimants did not obtain complete 

success on their original fee application); Mercer v. Duke 
WAGNER v. DVA 10

Univ., 301 F. Supp. 2d 454, 469 (M.D.N.C. 2004) (reducing 

a request for supplemental fees by 20 percent because the 

initial fee request was reduced by 20 percent), aff’d, 401 

F.3d 199 (4th Cir. 2005). 

Here, Wagner was partially successful in defending 

against the government’s challenge to his initial fee 

application, and he is entitled to supplemental fees commensurate with the degree of success he achieved.4 While 

“the relative degree of success in litigating for merits fees 

should bear upon the size of the fees-on-fees award,” 

Thompson, 45 F.3d at 1368, there is no justification for 

denying a supplemental fee request in its entirety simply 

because the claimant’s initial fee application was not 

wholly successful. 

To be sure, a court has broad discretion in awarding 

attorney fees, see Hensley, 461 U.S. at 437, and is not 

bound, in all cases, to make an award of supplemental 

fees that is proportionate to the degree of success obtained 

on the original EAJA application. A litigant is only 

 4 The Secretary challenged 27.4 of the hours 

claimed in Wagner’s initial EAJA application, and the 

Veterans Court disallowed 18.8, or approximately 68.6 

percent, of the challenged hours. Wagner asserts that 

when he submitted his application for supplemental fees, 

he reduced the hours claimed proportionately to his 

degree of success in defending his original fee application. 

On remand, the Veterans Court will have the opportunity 

to consider whether the supplemental fees sought by 

Wagner accurately reflect attorney hours reasonably 

devoted to the successful defense of the original fee application. We think it inappropriate to establish a blanket 

rule regarding whether the recovery of supplemental fees 

should be in proportion to the success obtained on the 

original EAJA application or the success in defending the 

contested fees. The considerations discussed in this 

opinion, however, should be taken into account on remand. 
11 WAGNER v. DVA

entitled to “reasonable” attorney fees, 28 U.S.C. 

§ 2412(d)(2)(A), and in fashioning a reasonable supplemental fee award a court may properly discount any 

“[e]xorbitant” or “unfounded” fee applications. Jean, 496 

U.S. at 163; see also Fritz, 264 F.3d at 1377 (emphasizing 

that a supplemental fee award can be reduced “to the 

extent that the applicant ultimately fails to prove justification for each item of fee claimed” or if the fee application is “procedurally defective”). On remand, the 

Veterans Court will have the opportunity to consider 

whether such factors warrant a reduction in Wagner’s 

supplemental fee award. If the court decides to discount 

Wagner’s supplemental fee request, however, it needs to 

provide a reasoned explanation as to why particular 

attorney hours should be excluded. See Hensley, 461 U.S. 

at 437 (explaining that a court must “provide a concise 

but clear explanation of its reasons for the fee award”); 

United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 213 (3d Cir. 2000) (emphasizing that a 

trial court cannot deny supplemental fees without providing an adequate explanation as to why such fees are 

“excessive, redundant [or] otherwise unnecessary” (citations and internal quotation marks omitted)). 

In denying Wagner’s application for supplemental 

fees, the Veterans Court stated that “[i]t would be anomalous to reduce an [initial EAJA] award by some $3,000 

and then award nearly that amount to the losing party 

simply for putting up a fight.” Supplemental Fees Decision, 2010 U.S. App. Vet. Claims LEXIS 197, at *3. We 

disagree. As the Supreme Court made clear in Jean, 

“[t]he EAJA applies to a wide range of awards in which 

the cost of litigating fee disputes would equal or exceed 

the cost of litigating the merits of the claim.” 496 U.S. at 

163-64 (footnote omitted). Thus, regardless of whether 

Wagner could recoup, through his supplemental fee 
WAGNER v. DVA 12

application, an amount that is nearly equal to the amount 

that he was denied on his original fee application, he is 

entitled to be compensated for all hours reasonably expended successfully defending his original fee request. 

See id. at 164-65 (“The Government’s general interest in 

protecting the federal fisc is subordinate to the specific 

statutory goals of encouraging private parties to vindicate 

their rights and curbing excessive regulation and the 

unreasonable exercise of Government authority.” (footnotes omitted) (citations and internal quotation marks 

omitted)). 

CONCLUSION

Accordingly, the judgment 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

Wagner shall have his costs. 

REVERSED AND REMANDED