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Wagner v. Shinseki

United States Court of Appeals for the Federal Circuit

October 24, 2013, Decided



 [*1344]  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.  [**2] 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, 110 S. Ct. 2316, 110 L. Ed. 2d 134 (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  [*1345]  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.


In 2001, Phillip Wagner, who served in the United States Navy for 23 years, sought  [**3] 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, 2009 U.S. App. Vet. Claims LEXIS 1791, *7 (Vet. App. Oct. 14, 2009).

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733 F.3d 1343 *; 2013 U.S. App. LEXIS 21587 **; 2013 WL 5746393

PHILLIP E. WAGNER, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Prior History:  [**1] Appeal from the United States Court of Appeals for Veterans Claims in No. 08-1702, Judge Alan G. Lance, Sr.

Wagner v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1341 (U.S. App. Vet. Cl., June 27, 2012)



Veterans, supplemental, appeals, fee application, original application, fee award, enter a judgment, rights, decisions, reduction, vacate

Civil Procedure, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Governments, Federal Government, Claims By & Against, Military & Veterans Law, Veterans, Claim Procedures, Department of Veterans Affairs, Appeals, Appellate Jurisdiction, General Overview, Appeals & Review, US Court of Appeals for Veterans Claims, Notice of Appeal, Reviewability of Lower Court Decisions, Timing of Appeals, Final Judgment Rule, Costs & Attorney Fees, Reasonable Fees